The Bureaucratic Beast of Brussels
“Power is not a means; it is an end. One does not establish a dictatorship in order to safeguard a revolution; one makes the revolution in order to establish the dictatorship. The object of persecution is persecution. The object of torture is torture. The object of power is power.”George Orwell, 1984
Wherever they burn books they will also, in the end, burn human beings.Heinrich Heine, Almansor
Dat veniam corvis, vexat censura columbas. – Censure acquits the raven, but pursues the dove.Juvenal
Previous posts dealt with the censorship landscape in Australia (ACMA) and the UK (OfCom), the latter suggesting Australians best familiarize themselves with events in the global north to know their own future. With this in mind, readings into the machinations of the EU is even more vital to Australians than taking a deep dive into ACMA. Whether by laziness to innovate homegrown policies, readiness to appease, self-defeating inferiority or simply the spirit of a sheep, the UK, US, EU and Canada will shepherd Australia forward. Other nations in the southern hemisphere are less socialized into automatic obedience, and different levers need be pulled. Beyond reflexive political obedience, Australia’s only other mission (and only other identity) is to sell itself to the highest bidder. Whether it be the physical property of real estate or the intellectual cache of a university degree for sale, Australia is the world’s largest property development project. As it devalues its own currency to sell more of itself, its leaders and CEOs ensure they inflate their salaries and kickbacks to compensate. This is the corporate model of the pimp. He gets richer while the body of the prostitute withers, slowly at first. But wither she shall.
National boundaries and notions of sovereignty are only minimally relevant anyway. Globalist oligarchies and systems of control are transnational, the so-called new world order already formed and fully functional. Power over information flow is no exception. Take the theme of today’s blog, the EU and its constituent nations. France has an embassy in Washington and an office of representation in New York at the UN. France also has consulates dotted throughout the continental US. But France does not have a consulate in Silicon Valley. Hardly a surprise, the EU too has delegation offices in Washington and with UN. Yet the EU also has a delegation office in Silicon Valley, this symbolic of the dialogue between real power blocs, both unelected by the people. France and the constituent nations of the EU do not hold court in the Silicon Valley and have no purchase on the world wide web. Nation states are mere vestigial shadows of themselves, their embassies there only for optics and to renew passports. The real nodes of power connect through the public (Washington and EU), private (Silicon Valley and military industrial equivalents), globalist (UN and WEF) partnerships. Human resources and their offices need be located somewhere from which we get the illusion of place. Sometimes anywhere will do. A company can be run in the US through a company name in Mauritius or Ireland trading x, y or z in third country under a World Bank framework. Many of the elite class on both sides of the BRICS divide collect passports. Born in America or China they are also Maltese, Columbian, Irish, Australian and more. Identity is already dissolved into the virtual. Same with money. Same with political rule. Poor people are attached to place. The elites live, work and rule everywhere.
Long story short, the EU, Australia or UK’s ministries of truth are simply branch offices no different to McDonalds and its penetrance across the worlds market. The façade is local architecture. Likewise, different accents and languages are heard coming from the faces of the staff. But the menu always converges to the same burger. This quartet of articles ought to be seen in that light, not a tour of different indigenous cuisines of censorship legislation so much as a photobook of the different facades serving the same authoritarian burger. In Australia it is the face of a sheep copy and pasting northern policy. In the UK there is a hollowing out of principles behind an afterimage of the dignified face of a previous age. Or perhaps it is the Janus face of being in the EU while not being in the EU. The US of the next substack instalment will have the face of a clown magician, distracting the eyes away from the rotting corpse of the first amendment. This third instalment we will investigate the face of the technocratic managerialist machine of the EU. It’s a jungle of pure hyper-bureaucracy. Just when you think you understand something of its machinations from the first 50 pages of a 200-page white paper or act of legislation or discover a new European quango there is yet another white paper or act of legislation and another quango. Or another. Or another. We can imagine a Kafkaesque future where every European is a public servant. But what public will they serve? Perhaps mass immigration serves the unconscious need for state expansion for its own sake.
It’s difficult to speculate much less know the motives or the ultimate players behind the European machine. It’s enough to know this – just as the US dominates and profits by way of evangelizing itself the cathedral of peace, democracy and liberalism, the EU too has a surface mission. Its mission is to notionally unite at all costs and with minimal regard to individual state or individual person. The terror against which it reacts is the potentiality in individuation, ethnocentrism, nationalism and attempts towards traditionalism. It’s not so much that any of these or adjacent concepts are necessarily right wing, much less fascist. Much less still are these ideas necessarily outright nazi. Still, insomuch as the EU draws on ideas planted many decades ago, anti-EU dissidents cannot be conservatives either. In 2023 we are all post modernists copying simulacra of something else we think was the case or might become the case.
But no matter. Anything that is not EU is taken to be proto fascist or proto nazi and to place Europe on the road back to the ovens. That’s the sales pitch and the twentieth century historical anchors dragging the psyche towards the collectivist imperative. Insomuch as anything localist/nationalist/ethnocentric/traditionalist and even insularly (i.e. not aggressively) racialist by and against minorities is not necessarily dangerous, the EU has little to fear from individualization per se. Ironically, the fear of the fascism runs the risk of gravitating towards the extremis of its historical opposite. That is to say, the real enemy of Nazism and its final executioner did not come from the west but from Moscow and Leningrad. Consequently, if all you fear is the Nazism and all that echoes in your head is the 20th century, all you might introject and become is an authoritarian socialist. The centralization of power, the Leninist managerialism, the rabid dissolution of nation by deliberate mass immigration and deliberate destruction of traditional models of sexuality and family, the moves towards an online Pravda, the massive dachas of the ruling class – all these things and more are the EU. All these things point to a choice made within a fallacy of the excluded middle; its either hard socialism or Nazism. To be sure, the greatest casualty of the European theatre were Russian and Jewish dead (in that order). But the second greatest casualty was the complete abolition of any and all political ideologies that could be framed as right wing or traditionalist or novel manifestations of the left. The transference reaction to see everything in mid twentieth century terms represents a kind of infantile regression preventing Europe from growing up…again. Paradoxically, the only way out of the 20th century trap is for Europe to deliberately forget about the last one hundred twenty years? Maybe the thing to really go back and exorcise is the spirit of 1789?
Utopian international socialism is nothing new and has been the mission of the EU from the first, and certainly within the accelerative phase of the current century. As far back as 2008 the EU commission set to work against what it subjectively considers “hate motivated” crime AND speech and set about a framework “combating” (using the metaphor of war) wrongspeak
hate motivated crime and speech are illegal under EU law. The 2008 Framework Decision on combating certain forms of expressions of racism and xenophobia requires the criminalisation of public incitement to violence or hatred based on race, colour, religion, descent or national or ethnic origin.
Now we can all agree on what constitutes an incitement offence. “let’s hurt them over there”, where “them” is a group defined by the agent who is explicitly inciting violence (thus revealing the mens rea and otherness of the target).
But what of hatred as a thought crime or wrong speak as a crime in itself? What of hatred as a construct, something more emotion than reasoned thought? If it is wrong to do hate yesterday, is it wrong to think hate today and will it be wrong to feel hate tomorrow? Or if I do not love, can it be assumed that I hate? Will there be a drug or brain stimulator to replace the hate with love, this too to be mandated? Is any criticism or generalization about any group a hate crime or assumed to increase the probability of hate arising? Is offensive humour necessarily passive aggression and passive aggression in turn an expression of hate? On the multidimensional spectra of political ideology, is anything hate adjacent (or anti EU), in danger of becoming hate crime? In future, psychometric testing might claim to predict that anti 5g or anti Pfizer thinking is more likely to be anti-immigration or anti global free trade (and so xenophobic, racist and proto nazi?). In events propagandized as emergencies, the precautionary principle may call for actions against people at risk of hating, or haters at risk of hate crimes or just thinkers at risk of thinking differently. Missing from this is the class divide. What if the government and elites become their own client group to protect? They are, of course, a minority. Is hatred of a regime a hate crime, in which case we are compelled to love big brother?
We have seen the emergence of words such as misinformation and disinformation in recent years, with 2020 (or 0 AC “after covid”) heralding a deep change in the assumed power of words (and from this the manufacturing of consent towards authoritarian censorship of these words). In the action against me by the Australian medical regulator – (and why not mention this? Contrary to geographic reality, Australia has been invited to Eurovision), – as I was saying in the action against me a complainant stated that my public objections to lockdown, masks and coerced covid vaccination were becoming too widely known in low socio-occupational “vulnerable” populations. The implication was that these folk require careful shepherding. My “misinformation” was at perceived as risking bringing harm upon the stupid proles about which the complainant’s false virtue was directed. Actually, the target of my attack was the government and what is taken to be the Australian intelligentsia (almost an oxymoron). My assumption borne of political principal was that this “vulnerable” underclass owns the property of their own responsibility to decide for themselves. They are not to be protected from my alleged misinformation so much as the covert message that they lack the agency and responsibility to choose what to hear and what to believe. When the state chooses a vulnerable object it wishes to be seen as saving, this is a false motive. In truth its interests really lay in self-preservation of its own power either by inciting the underclass against a rival intelligentsia or as an act of projection of its hatred of the common man. In the EU are we then dealing with a principled love of authoritarian socialism, an irrational hatred and fear of the other projected outwards onto peaceful left and right wingers who just wish to be left alone? Or is it the cynical message of 1984 as embodied in O’Brien’s shameless confession, i.e. that power for powers sake is the goal.
Apart from the perennial fear of the emergence of a reactionary right (framed as Nazi), other boogeymen include the need protect the proles from online financial crime, sex crimes (especially those against children) and terrorism (increasingly framed as domestic and not Islamic). You don’t want the net radicalizing the masses into violent extremism. You don’t want your children hunted by online predators. You don’t want to be ripped off. That’s the pitch leading up the new era in information control. Safety and convenience. Wins every time.
The Digital Markets Act and the Hierarchy of Control
The digital services act (DSA) must be seen as a package operating in tandem with the digital markets act (DMA) and about a dozen other acts besides. Construction of both began in 2020 with a view to be operating in full force by approx. 16th February 2024, these dates bookending with both the beginning of the pandemic (2020) and the year when the WHO is to roll out their own nefarious pandemic plans (2024). The US election will also be held in 2024, and the apparatus of European propaganda need be controlled in the lead up. The next German election will be in 2025 and the next French election in 2027. The next Italian election is also likely be held in 2027 when Meloni will need face the music for talking tough and then doing little. But let’s not be too conspiratorial as to the timing. Elections are always coming and going. The DSA is an update of something that came before, i.e., the electronic commerce directive of 2000. Everyone is playing catchup with accelerationist change, including architects of the change itself on both sides of the censorship divide. The internet only really exploded in the past decade. The mainstream assumed it would always be in control. The dissident online community assumed the net would always be wild and free. Both were horribly wrong.
The digital markets act (DMA) deals more with the money aspect of anti-trust and competition laws, notionally allowing competitor companies a place in the digital public square (e.g., if I own a widget factory and so does Mark Zuckerberg, he must be cautious if disallowing me access to advertising on facebook). So far so good and fair enough, though private property absolutists won’t be happy. Facebook is after all, Zuckerberg’s own agora. We can choose go elsewhere, can’t we? The DMA is similarly said to allow businesses and consumers move between the various digital structures with ease and without exploitative software that cannot be easily deleted or digital entanglements that cannot be untied (e.g., I should not be bound to use meta or X everything and ought to be able direct my customers towards competitive independent payment and delivery systems). The DMA also legally encourages platforms move towards interoperability across platforms. All this compliance monitoring and fair play is audited and expensive, the cost carried largely by the very large platforms themselves. Insomuch as these need interface with new functions within the EU machine, doubtless the whole enterprise will partly be publicly funded and partly passed onto the consumer via other means. This or the commodity to be exchanged is privacy and big data itself. There is a saying in the dissident community. If the online service is free, YOU and your privacy are the objects of consumption.
What the DMA (and DSA) allows is the EU enter into a symbiotic relationship with the largest private platforms, deputizing them as “gatekeepers” and consolidating their relationship to power (and success in the market) in return for answering to the EU. These are called the very large online platforms (VLOPs) and very large online search engines (VLOSE).
Just what does it take to be a “very large platforms”? These include operating systems, search engines and very large businesses defined as having approx. 45 million monthly users. Names included on this list so far (re the DMA) are alphabet/google apps (YouTube inclusive), facebook/meta, apple and amazon app platforms, Bytedance/tiktok and samsung There are a host of other candidates for designation as gatekeepers re the DMA.
Smaller players using these platforms and systems are freed somewhat from compliance costs. The very large will police compliance on smaller players behalf according to the EU rules. It looks as if the burdens are shifted upwards, though appearances can be deceiving. With great power comes great responsibility comes state endorsed power as a reward for a compliance job well done. The perspective one can readily make is that the new legislation creates a double layered protection racket. Obviously, the market and consumer psychology will only allow a finite number of top tier platforms. Just as the common folk cannot compete their way into an aristocracy, competition itself is a scam. Smaller players will always compete for lower tier dominance under gatekeeper rule. Even in the supposed free market of the USA we see rapacious large players gaming the system, often integrated from the first with the deep state.
Another flip side danger lay in the move towards interoperability, for while it sings “convenience”, it it places demands on all to work as one and towards a future single system. Yet another danger is that the compliance monitoring of the EU allows for it to gain access to the data of 400+ million consumers. The EU will then have perfect economic knowledge under monitoring provisions of the act. And if the DMA doesn’t remove the veil of privacy, the DSA will. Granted the EU uses the rhetoric of privacy and hides data harvesting behind goals of “research” and “compliance monitoring”. But it is what it is and isn’t what it isn’t. Japan once hunted whales for “research” conducted at laboratory tables of fine dining. Words are their function in the world.
The Digital Services Act
Now to the digital services act (DSA). We shall be most concerned with it as the DSA will be the legislative vehicle by which the EU polices and censor online information content. I shan’t exhaustively cover all the 155 introductory paragraphs, let alone all 93 articles of the act proper. The document clocks out at just over 100 tedious pages. Like the digital markets act (DMA), the DSA defines and stratifies online entities as to the scope of their power and their ability to influence the masses.
The Visual Acuity of the DSA: From Intermediary Services to Very Large Platforms
The DSA is constructed pragmatically, its architects aware it cannot see into all corners of Winston Smiths room. For now, at least, fringe players, micro players and old tech are allowed some latitude to bob about in their own echo chambers without any hope of effecting change on a mass scale. For now at least the DSA as a censorship instrument cannot touch private emails or personal zoom calls. Activist groups will probably continue get away with bulk email bulletins and similar online activities on fringe chat sites. Likewise, VPN users can ventriloquize themselves out of Europe.
Then there’s “intermediary” mere conduits such as internet service providers and domain name registries. There’s other intermediary forms such as caches of automatic content flow and delivery (payment processing sites for example). These store data only temporality and are not involved directly in the dissemination of subversive ideas. Consequently, control is also less intense at this level. The regulation starts kicking in harder with simple hosting services such as cloud and shared hosting which store information for recipients, and which discriminate what information is stored. We begin to transition now towards online platforms with more sophisticated information sharing and storage. Notionally these wannabe YouTube’s and dissident news media sites can be any size, ending with the greatest control over very large players previously mentioned. Twitter/X, Wikipedia, LinkedIn, Instagram, Bing and Zalando are also easily large enough to be very large online platforms (VLOPs) for purposes of the DSA, as is Booking.com, Airbnb and Alibaba et al. The entire landscape of media and culture, social media, HR, product purchase and human movement is covered under the DSA. And if the masses begin to distrust a VLOP and move towards smaller players, they will become large for a day only to be crushed the next. The selection pressure is towards establishment compliance. The eye of Sauron does not concern itself with insects but rather only rival powers. The eye of Sauron sees all it needs to see.
But it gets worse. Relative freedom from monitoring (and liability) does not imply that minor functionary and low tier intermediary services are immune from state control. This depends upon how minor they are and what data they store. They can be destroyed by the large platforms on which they post content. Under articles 9 and 10, if the state gives the order, small players may be instructed to act swiftly against “illegal content” and provide user information. Further, if low tier players choose to monitor for illegal and harmful content, they are obliged to act on it if they find it. One can only speculate on the back-room incentives towards more small players choosing to fish and being rewarded for what they catch and kill. As we shall see, the concern is not only with illegal content.
Articles 11 and 12 obligate small intermediary services to establish points of contact with both the union itself and the customer base, not merely via use of automated bots. Both these requirements are reasonable and trivial.
Article 13 introduces us to the concept of legal representation. Even some small players must have a legal representative or natural person in an EU member state ready to speak (and be liable) on their behalf. Legal or natural persons are not to be seen as equivalent to professional legal practitioners. what the EU is saying that they wish to ensure they have someone they can hurt.
Article 14 is a similarly trivial mention of transparency around terms and conditions of all services, intermediary or otherwise.
Article 15 begins to define monitoring, moderation and reporting obligations which will be annual for non-exempt small players and twice annually for VLOP and VLOSE. The article specifically calls for a publicly available report outlining the outcomes of content moderation as per other articles.
Article 16 furthers the obligation with requirements for services to swiftly investigate and action any complaint from any individual and feedback to the same.
Article 17 defines the obligation to notify the targets of the complaint of the complaint itself and actions taken, including suspension, de-platforming and demonetization. Actions taken extend beyond criminality as such, and into the nebulous realm of violating “terms of service”.
We have begun a hard steep ascent up the ladder of bureaucratic complexity. With it comes a) the selective pressure re the capacity to meet the expenses of conformity, b) the signalling sent to the EU itself what sites are more populated by problematic users and which are regime loyalists, c) the creation of selection pressure for services to self-censor rather than be burdened with unprofitable distractions and d) the enshrinement in law for users to similarly self-censor to stay out of trouble. The concept of violation of terms and conditions is given legal legitimacy without any reconciliation between this and principles of human rights.
Article 18 defines the obligations to inform europol and/or member states if a service comes upon
information giving rise to a suspicion that a criminal offence involving a threat to the life or safety of a person or persons has taken place, is taking place or is likely to take place.
Will this incentivize or dis-incentivize the online service to play detective? How can they determine the likelihood a crime will take place? Only time will tell.
Jumping ahead for a moment, articles 61-63 introduce the new “European Board for Digital Services”, formed specially to deal with the intermediary services previously mentioned (internet service providers, simple messaging services, domain name registries, cache tools, simple payment processors and the simplest functions within hosting services). This board is a way by which the EU can bring in outside experts and NGO’s (i.e. conflicted players) to EU meetings and further undermine the local governance of member states and their citizens.
“Quis custodiet ipsos custodes? – Who will watch the watchers?”
Article 22 is particularly concerning, for it expands on the concept of “trusted flaggers” nominally introduced in article 16. The trusted flagger is defined outside the act as being (allegedly) independent of platforms the flagger investigates. They are chosen based on proven “expertise” in detecting “illegal” online content, where illegal is defined as
‘illegal content’ means any information that, in itself or in relation to an activity, including the sale of products or the provision of services, is not in compliance with Union law or the law of any Member State which is in compliance with Union law, irrespective of the precise subject matter or nature of that law
Selection involves the candidate flagger applying to a digital services coordinator of an EU member state, this being only one of several places where the notion of independence immediately begins to break down. Flaggers can be government entities themselves, NGO’s and according to recital 46…
Organisations committed to notifying illegal racist and xenophobic expressions online. For intellectual property rights, organisations of industry and of right-holders could be awarded trusted flagger status, where they have demonstrated that they meet the applicable conditions and respect for exceptions and limitations to intellectual property rights.
Article 23 calls for a proportionate response in suspending online users from accessing a platform or platform (this includes de-platforming and demonetizing content creators).
Taking 22 and 23 together, proportionality is in the eye of the beholder and the hands of the enforcer We cannot as an article of faith assume trusted flaggers will have noble interests shared by the citizenry, as is the case (for example) with taskforce Argos and INHOPE’s efforts to scour the net for child sexual abuse or those functionaries of government looking for online evidence of planned acts of violent terrorism.
We already see the blurring of what is nominally illegal and what is politically incorrect now and in future, between law vs codes of conduct (including the existing 2016 EU CoC on hate speech), law vs “terms of service” and offensive speech vs hate speech. . From crime to pre-crime. From illegal online activity to politically incorrect. The foxes will be policing the foxes and feasting on the hens.
We already have highly ideologically biased and state captured “fact checkers”, “trusted flaggers”, “trusted partners” and “safety partners” working with existing sites, the question arising who fact checks the fact checkers and who funds the fact checkers. Will trusted flaggers be the way by which the EU will wrest freedom from the platform? Or will it be the way the platform (and the state) both collude to wrest freedom from citizen users? What constitutes “independence” when very large platforms can have very profitable and ideologically aligned connections one or two degrees removed from the platform as such, yet still falling under the platforms influence? You will never know the money and human resources that will flow between trusted NGO’s, corporate interest and the EU in the cycle of paying favours forward whilst maintaining the illusion of independence.
Flaggers allow for more subtle forms of control. We already have the strategy of “over blocking” used to discourage content creators and sharing services from going too far. That is to say, flaggers can engineer a complaint in order to slow down the operations of a political foe, both removing their content in the short term and dis-incentivizing them from expressing themselves in future. Rival minorities can compete for flagging volumes so as to give the appearances of being more victimised and further insinuate themselves into both policies to prevent hate and the funding of NGO’s and quango’s to combat it. The EU itself might wish to rev up flagging to justify its own political agenda and the bureaucratic want to expand itself. We must not lose sight of the fact that flaggers exist to look for what ought to be censored. There is no army of organisations authorised to proactively protect free speech against flaggers on the hunt. At a meta level, perhaps the greatest wound is the existence of the trusted flaggers prior to what they do. It normalises a culture of distrust and perpetual surveillance. Normalised too is the control systems of the public private partnership/stake holder capitalist model of governance. Darker motives still lay in wait. As the scale of the checking, flagging and moderating reaches into the tens of millions, automation will need take over in order fulfil the goal of total online safety. In the end the human will give way to the AI, only to return to AI governed by a small set of oligarchs who game it for their own gain.
Specific Obligations of Very Large Platforms
I want to jump now to article 33 onwards and VLOPs. the articles from then on are a nightmare of bureaucratic obligations placed upon the large players to put in place risk mitigation strategies including risk assessing their sites, putting in place algorithms etc, surveil the net for offences and act swiftly with ad hoc and periodic reporting back to the local member state DSA coordinators and the EU commission itself. (34-35). Audit compliance is annual, and at the sites own expense. Insomuch as all these obligations must articulate with EU based complementary infrastructure, the private expense of the site is mirrored in the public expense behind EU funding.
Article 40 Data entry and Scrutiny adds to the stable of Trojan Horses that is the DSA for it establishes the place of EU appointed vetter “researchers” to access site data. This is in excess of the sharing obligations for ordinary compliance and functioning and for purposes “that contributes to the detection, identification and understanding of systemic risks in the Union…”. Layer upon layer, the tripartite collusion between EU, big data and big business will establish perfect knowledge of the economic and ideological movements of the member states and their citizens.
Article 41 defines the requirement for large sites to have an office of compliance with dual reporting obligations to the EU and the site executive itself. Articles 42 and 43 respectively deal with transparency where the EU wishes there to be transparency and supervisory fees passed onto the large platforms (and from the large platforms onto consumers?). Article 44 provides a comedic break, as it refers to “voluntary” standards, where the voluntary agent is the EU and its favoured international standardization bodies.
Articles 45-47 deal with codes of conduct, the take home message being that ad hoc codes of conduct can be constructed as required with (non-emergency) emergent risks. Another Trojan horse by which the DSA is more than its own pages in managing what it, and not its citizens, see as risk. Talk of codes of conduct appeal to article 34 in outlining risks. None can argue about the rights of the child human dignity, let alone media pluralism and privacy. All these fundamental rights are notionally contained in article 34. But, and this is a big “but”, rights and trade offs of rights are in the subjective eye of the beholder with power. When article 34 also speaks of
any actual or foreseeable negative effects on civic discourse and electoral processes, and public security
any actual or foreseeable negative effects in relation to gender-based violence, the protection of public health and minors and serious negative consequences to the person’s physical and mental well-being
we widely open the door to all the excesses of political correctness and the public health tyrannies of the covid era. I would put it to you that the EU lacks the intellectual and moral capacity to even understand the concept of rights, much less attempt balance them in practice and in good faith. Anything and everything contrary to regime interests can be framed as dangerous to public interests and the rights of the abstract citizen.
Articles 49-51 especially expand in the role of the digital service coordinator (DSC). Each EU member state shall appoint a DSC, which must be in place by Feb 2024 to both administer EU censorship in the member state itself, in addition to coordinating with and reporting back to the centralized commission. Insomuch as the DSCV must be staffed and resourced along the lines of central diktat, this provides a further means by which member states lose control of their own budget and sovereignty. The DSC will have sweeping powers to demand information disclosure, enter premises, to put in place interim (i.e. without due process) measures of remedy and penalty and more…
Penalties and the Global Context
What of very large platforms failing to comply with EU regulation and what EU complainants and what the digital service coordinators believe to be wrong think/speak? Can Silicon Valley and large platforms based in other nations just say no and hope to still beam information into mainstream Europe? Well, article 52 outlines just how much large platforms can’t just say no. The EU will respond with a fine of up to 6% the platforms global turnover. Not local turnover, global turnover! And not nett profits, but gross turnover itself. Daily fines can follow if the tribute is not paid. Complete de-consecration of the platform and suspension from the EU market is the final step.
It’s important to emphasize here the globalist nature of the EU’s diktats. Online giants cannot simply get around the problems posed by splitting themselves up into intra or extra European local sites on national border lines. If Twitter/X for example wishes to do business in the EU, its content everywhere need conform. There cannot be Twitter Italy censoring differently to Twitter France censoring differently in turn to Twitter US. The EU has already anticipated and closed this potential loophole.
We are confronted with two facts, the first being a) big tech is almost universally across the Atlantic in the US, with rival minor players based in the BRICS and b) the EU is a 400million strong market that cannot just be abandoned by disgruntled American companies with a commitment to free speech. My own speculations are that one of two possibilities are at play.
The first is that the EU saw the chaos and unpredictability of populism in Trump and both left and right leaning populism everywhere and wants to insulate against free speech threatening its own continental interests. Greater control might then allow the EU more freedom in the information warscape to choose its own sovereignty and future partners, including what the US fears more than anything else, a pan European alliance between Russia and Europe. It is hardly controversial to suggest that supposedly European sentiment against Russia is, by and large, manufactured in Washington and Langley. This is hardly to imply that the EU is holy and good intentioned, as opposed to seeking complete control of its own propaganda apparatus and to leverage this to wield greater power in the world.
The second speculation is bleaker. I would suggest the US already achieved complete dominance in Europe and desires the digital services act more than Europe herself. Insomuch as it is designed towards market dominance of the large platforms AND censorship of the same, it is the way by which the US can ensure its tech giants retain oligarchic power whilst giving reason back home to kill off the first amendment. When Facebook and X/Twitter pull the posts and YouTube pulls the video’s, rather than curtailing free speech it’s just the cost of doing business.
States of Emergency in States of Emergency
Let’s dwell on for a moment is preamble paragraph 91 and article’s 36 and 48. Previously I have written that the danger within the concept of the state of emergency (SOE) lay not in its abuse as if the SOE, but rather in the SOE itself. That is to say, a power that can call a SOE is constitutively dangerous. Its use will always, ALWAYS, gravitate towards tyranny. This is especially the case in nominal democracies where clever manufacturing of consent is required. The romans had far better control over the use of SOE than any modern western democracy founded on classical liberal lines.
I quote here in full section 91:
In times of crisis, there might be a need for certain specific measures to be taken urgently by providers of very large online platforms, in addition to measures they would be taking in view of their other obligations under this Regulation. In that regard, a crisis should be considered to occur when extraordinary circumstances occur that can lead to a serious threat to public security or public health in the Union or significant parts thereof. Such crises could result from armed conflicts or acts of terrorism, including emerging conflicts or acts of terrorism, natural disasters such as earthquakes and hurricanes, as well as from pandemics and other serious cross-border threats to public health. The Commission should be able to require, upon recommendation by the European Board for Digital Services (‘the Board’), providers of very large online platforms and providers of very large search engines to initiate a crisis response as a matter of urgency. Measures that those providers may identify and consider applying may include, for example, adapting content moderation processes and increasing the resources dedicated to content moderation, adapting terms and conditions, relevant algorithmic systems and advertising systems, further intensifying cooperation with trusted flaggers, taking awareness-raising measures and promoting trusted information and adapting the design of their online interfaces. The necessary requirements should be provided for to ensure that such measures are taken within a very short time frame and that the crisis response mechanism is only used where, and to the extent that, this is strictly necessary and any measures taken under this mechanism are effective and proportionate, taking due account of the rights and legitimate interests of all parties concerned. The use of the mechanism should be without prejudice to the other provisions of this Regulation, such as those on risk assessments and mitigation measures and the enforcement thereof and those on crisis protocols.
We can stop here. Though the DSA need not allude to the reality of power for power to be real, the regime has us on notice they can change course any moment in the wake of a “crisis”. The action a government wishes to take to manage a crisis includes managing the information state of the citizens. Propaganda and censorship is action. What constitutes a crisis is propaganda. It has a subjective quality only partly if at all determined by objective events in the world. It is partly or completely determined by the incentives of those with the power to claim a crisis has emerged. Both citizen and elite stakeholder parties may come into conflict with what constitutes a crisis. But who has the power to make the call? Not the people!
Think of all the issues which the words “misinformation”, “disinformation”, and “crisis” can easily be slotted. There’s evaluation of recent alleged pandemics and the “narrative” around future pandemics, the risk the contagion poses and the motives and capabilities of the WHO etc. Environmental threats are crises, including yet not limited to climate change if they wish it. So, there’s wars against viruses and wars against carbon. There’s also conventional hot and cold wars within Europe and abroad, both with the risk of escalating tensions and crisis within the EU. Cybercrime is always a threat. Is mass illegal immigration a crisis? It certainly can be, as can the threat of nationalist reactionaries and the pre-reactionary frustrations online. Integrating or disintegrating races and sexualities can easily be framed as crisis. Public perception of the economy and consumer behavior as reaction to the economy itself (inflation and unpayable public debt for example) are also potential crises. All these and more are the prevailing issues about which people will seek discourse online. And so you see all are crises in waiting. Like the threshold defining the very large online platform or the trustworthiness of the flagger, crises will also be decided arbitrarily. Crises will be decided by power. When the temperature rises the ordinary operations of the DSA will cease, as will the DSA itself. The soft and insidious tyranny of the EU will then emerge. In its potentiality it is already here. Ergo the DSA isn’t. And so there is nothing really to read…
This article was first published on Robert’s Substack here.