Should digital gerrymandering be illegal? Photo: Getty
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Facebook could decide an election without anyone ever finding out

The scary future of digital gerrymandering – and how to prevent it.

On 2 November, 2010, Facebook’s American users were subject to an ambitious experiment in civic-engineering: could a social network get otherwise-indolent people to cast a ballot in that day’s congressional midterm elections?

The answer was yes.

The prod to nudge bystanders to the voting booths was simple. It consisted of a graphic containing a link for looking up polling places, a button to click to announce that you had voted, and the profile photos of up to six Facebook friends who had indicated they’d already done the same. With Facebook’s cooperation, the political scientists who dreamed up the study planted that graphic in the newsfeeds of tens of millions of users. (Other groups of Facebook users were shown a generic get-out-the-vote message or received no voting reminder at all.) Then, in an awesome feat of data-crunching, the researchers cross-referenced their subjects’ names with the day’s actual voting records from precincts across the country to measure how much their voting prompt increased turnout.

Overall, users notified of their friends’ voting were 0.39 per cent more likely to vote than those in the control group, and any resulting decisions to cast a ballot also appeared to ripple to the behaviour of close Facebook friends, even if those people hadn’t received the original message. That small increase in turnout rates amounted to a lot of new votes. The researchers concluded that their Facebook graphic directly mobilised 60,000 voters, and, thanks to the ripple effect, ultimately caused an additional 340,000 votes to be cast that day. As they point out, George W Bush won Florida, and thus the presidency, by 537 votes – fewer than 0.01 per cent of the votes cast in that state.

Now consider a hypothetical, hotly contested future election. Suppose that Mark Zuckerberg personally favours whichever candidate you don’t like. He arranges for a voting prompt to appear within the newsfeeds of tens of millions of active Facebook users – but unlike in the 2010 experiment, the group that will not receive the message is not chosen at random. Rather, Zuckerberg makes use of the fact that Facebook “likes” can predict political views and party affiliation, even beyond the many users who proudly advertise those affiliations directly. With that knowledge, our hypothetical Zuck chooses not to spice the feeds of users unsympathetic to his views. Such machinations then flip the outcome of our hypothetical election. Should the law constrain this kind of behaviour?

The scenario imagined above is an example of digital gerrymandering. All sorts of factors contribute to what Facebook or Twitter present in a feed, or what Google or Bing show us in search results. Our expectation is that those intermediaries will provide open conduits to others’ content and that the variables in their processes just help yield the information we find most relevant. (In that spirit, we expect that advertiser-sponsored links and posts will be clearly labeled so as to make them easy to distinguish from the regular ones.) Digital gerrymandering occurs when a site instead distributes information in a manner that serves its own ideological agenda. This is possible on any service that personalises what users see or the order in which they see it, and it’s increasingly easy to effect.

There are plenty of reasons to regard digital gerrymandering as such a toxic exercise that no right-thinking company would attempt it. But none of these businesses actually promises neutrality in its proprietary algorithms, whatever that would mean in practical terms. And they have already shown themselves willing to leverage their awesome platforms to attempt to influence policy. In January 2012, for example, Google blacked out its home page “doodle” as a protest against the pending Stop Online Piracy Act (SOPA), said by its opponents (myself among them) to facilitate censorship. The altered logo linked to an official blog entry importuning Google users to petition Congress; SOPA was ultimately tabled, just as Google and many others had wanted. A social-media or search company looking to take the next step and attempt to create a favourable outcome in an election would certainly have the means.

So what’s stopping that from happening? The most important fail-safe is the threat that a significant number of users, outraged by a betrayal of trust, would adopt alternative services, hurting the responsible company’s revenue and reputation. But while a propagandistic Google doodle or similarly ideological alteration to a common home page lies in plain view, newsfeeds and search results have no baseline. They can be subtly tweaked without hazarding the same backlash. Indeed, in our get-out-the-vote hypothetical, the people with the most cause for complaint are those who won’t be fed the prompt and may never know it existed. Not only that, but the disclosure policies of social networks and search engines already state that the companies reserve the right to season their newsfeeds and search results however they like. An effort to sway turnout could be construed as being covered by the existing agreements and require no special notice to users.

At the same time, passing new laws to prevent digital gerrymandering would be ill advised. People may be due the benefits of a democratic electoral process. But in the United States, content curators appropriately have a First Amendment right to present their content as they see fit. Meddling with how a company gives information to its users, especially when no one’s arguing that the information in question is false, is asking for trouble. (That’s one reason why the European Court of Justice got it wrong when it opened the door to people censoring the search-engine results for their names, validating a so-called “right to be forgotten.”)

There’s a better solution available: enticing web companies entrusted with personal data and preferences to act as “information fiduciaries”. Champions of the concept include Jack Balkin of Yale Law School, who sees a precedent in the way that lawyers and doctors obtain sensitive information about their clients and patients – and are then not allowed to use that knowledge for outside purposes. Balkin asks: “Should we treat certain online businesses, because of their importance to people’s lives, and the degree of trust and confidence that people inevitably must place in these businesses, in the same way?”

As things stand, web companies are simply bound to follow their own privacy policies, however flimsy. Information fiduciaries would have to do more. For example, they might be required to keep automatic audit trails reflecting when the personal data of their users is shared with another company, or is used in a new way. (Interestingly, the kind of ledger that crypto-currencies like Bitcoin use to track the movement of money could be adapted to this function.) They would provide a way for users to toggle search results or newsfeeds to see how that content would appear without the influence of reams of personal data – that is, non-personalised. And, most important, information fiduciaries would forswear any formulas of personalisation derived from their own ideological goals. Such a system could be voluntary, in the way that businesspeople who make suggestions on buying and selling stocks and bonds can elect between careers as investment advisers or brokers: the “advisers” owe duties not to put their own interests above those of their clients, while the “brokers” have no such duty, even as they – confusingly – can go by such titles as financial adviser, financial consultant, wealth manager, and registered representative. (If someone’s telling you how to handle your nest egg, you might ask flat out whether he or she is your fiduciary and walk swiftly to the exit if the answer is no.)

Constructed correctly, the duties of the information fiduciary would be limited enough for the Facebooks and Googles of the world, while meaningful enough to the people who rely on the services, that the intermediaries could be induced to opt into them. To provide further incentive, the government could offer tax breaks or certain legal immunities for those willing to step up toward an enhanced duty to their users. My search results and newsfeed might still end up different from yours based on our political leanings, but only because the algorithm is trying to give me what I want – the way that an investment adviser may recommend stocks to the reckless and bonds to the sedate – and never because the search engine or social network is trying to covertly pick election winners.

Four decades ago, another emerging technology had Americans worried about how it might be manipulating them. In 1974, amid a panic over the possibility of subliminal messages in TV advertisements, the Federal Communications Commission strictly forbade that kind of communication. There was a foundation for the move; historically, broadcasters have accepted a burden of evenhandedness in exchange for licenses to use the public airwaves. The same duty of audience protection ought to be brought to today’s dominant medium. As more and more of what shapes our views and behaviors comes from inscrutable, artificial-intelligence-driven processes, the worst-case scenarios should be placed off limits in ways that don’t trip over into restrictions on free speech. Our information intermediaries can keep their sauces secret, inevitably advantaging some sources of content and disadvantaging others, while still agreeing that some ingredients are poison – and must be off the table.

Jonathan Zittrain is a professor of law and computer science at Harvard University, and author of “The Future of the Internet – and How to Stop It”. This article is adapted from remarks given at the 2014 Harvard Law Review Symposium on Freedom of the Press. A version will appear this month in the Harvard Law Review Forum.

This article first appeared on newrepublic.com

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How gendered are this year’s most popular Christmas present toys?

Meet the groups fighting back against the gendering of children’s toys over the festive season.

You’re a young girl. You go into WH Smith’s to pick out a colouring book for Christmas. You could buy the Girls’ World Doodling and Colouring Book, a "gorgeous gift for any girl". In this, the pictures range "from flowers, fans, feathers, to birds, buttons and butterflies". Or Colouring for Girls: Pretty Pictures to Colour and Complete, where you can colour in "beautiful birds, seashells, cupcakes, pretty patterns and lots more". The counterpart Boys’ Colouring Book has a range beyond buttons and feathers: "Planes, trains and automobiles – plus the odd alien spacecraft".

In the run-up to Christmas, this kind of gendered marketing is rife, particularly finding its way into the predominantly pink colour scheme of girls’ toys.

Take Amazon’s page "2016 Toys for Girls": a pink icecream trolly set, a pink light-up tablet, pink building blocks, pink and purple friendship bracelets and so on.

There are several groups taking action against the "pinkification" of children’s toys. One of these is Let Toys Be Toys, a group that targets large supermarkets with the aim of reducing the gendered marketing used on children’s goods.

The Let Toys Be Toys blog focuses on specific examples of targeted gendering within shops, catalgoues and online. A particularly revealing example of how prevalent this has become in recent years is in two pictures published from the Argos catalogue, one from the Seventies, and one from nowadays. The eye-wateringly pink page from now makes the 1970s page look dour by comparison. The lack of change over four decades of what kind of products are marketed at girls is equally striking:

Despite the efforts of campaign groups such as Let Toys Be Toys, the prevalence of gendering within the highest-rated children's gifts for 2016 is staggering.

Look no further than the Ultimate Christmas Gifts Guide from Toys R Us. One of the most immediately obvious examples is the way in which the pink/blue colour schemes are used to market identical products. This is repeated again and again:

This identical drawing board is uniquely packaged to the binary colour codes that are so common within children's toys stores.

The same applies with this keyboard, where the young girl and boy are pictured almost identically, save for the coordination of their clothes to the colour of their toys.

The message is a hugely limiting one: one that allows little movement away from the binary of pink/blue. The effects of this are longstanding. A recent poll from YouGov shows that "only a third of parents approve of boys playing with Barbies". The data goes on to explain that "while most parents approve of girls playing with toys marketed to boys, a minority of adults approve of the opposite".

Images like this were the inspiration behind Let Toys Be Toys, back in 2012. The campaign began on Mumsnet, the forum for parents, on a section called "AIBU", which stands for "Am I Being Unreasonable?". One parent posted the question: "Am I being unreasonable to think that the gendered way that children’s toys are marketed has got completely out of hand?" The heated discussion that followed led to a sub-section with the founding memebers of Let Toys Be Toys.

This aside, Let Toys Be Toys has made signifcant progess since it began. It targets large stores, focusing on gendered signage both in store and online. In their four years, they have campaigned for signs like "girls' toys" and "boys' toys" to be removed from retailers such as Boots, Debenhams, Morrisons, Toys R Us and TK Maxx. It is the go-to hashtag on Twitter for examples of the often shocking gendering of children’s toys.

"This is ostensibly about toys, but what we’re really talking about is gender stereotypes that shape our children’s worlds in an apparently very unassuming way," says Jess Day, a Let Toys Be Toys campaigner. "It seems very innocent, but actually what we’re doing is giving children very clear instructions about how to be a man and how to be a woman."

These clear instructions work beyond colour coordination: where girls are sold the image of the pink "girly girl", for instance. This is evident in children’s fancy dress costumes. Early Learning Centre’s (ELC) children’s fancy dress range imposes very rigid gender roles. To give examples from the current christmas range:


Credit: ELC

Again, the predominant colour sceme is pink. The roles offered are mainly fairies and princessess: generally make-believe.

“I found it really interesting that there were almost no ads showing girls doing anything," comments Day. "Physically they were very passive. The only physical activity we saw girls doing was dancing. They weren't really moving around much."


Image: ELC

By contrast, young boys are offered the possibility of pretending to be a firefighter, a policeman or a doctor, among other practical, professional roles.

This year's Toys R Us Christmas advert follows on from this, with girls mainly dressed as princesses, and boys dressed as knights and kings. Much like the pink/blue colour scheme that we see all over children's shops, these fancy dress costumes create an unnatural binary. They send out a message that restricts any kind of subversion of these two supposedly polar opposites.

What's more, the subtext is one that is deeply rooted in expectations, building up a picture where careers such as that of a policeman and fireman come more naturally to boys, who have been socialised into these roles from childhood through fancy dress costumes of this type. Instead, girls are later forced to learn that most of us aren't going to become princessess, and none of us fairies – and so the slow process begins to unlearn these expectations.

There are certainly groups who try to counteract this. Manufacturers such as the toy brand IamElemental aims to break down the gendered distinctions between boys' toys and girls' toys, by creating female action figures.

“We always say that we are not anti-doll or anti-princess, but that if you give a girl a different toy, she will tell a different story," says Julie Kershaw, a member of the organisation. "As the mom of two boys, I always say that it’s just as important to put a strong healthy female action figure in a boy’s hand as it is a girl’s”.

Like the campaigners behind Let Toys Be Toys, IamElemental sees children’s toys as the starting point.

“We want kids – both girls and boys  – to internalise these messages early and often,” says Kershaw. “While there are certainly biological differences between girls and boys, gender-specific toys are not a biologically dictated truth. Toys are not “for girls” or “for boys”  – toys are for play; for exploration and creative expression.”

This attitude is ingrained in a child’s early years. Only through reconfiguring the gender sterotypes of the toys we buy for our children can we begin to break down their expectations of how to behave in age. We challenge you this Christmas to avoid these highly gendered products. Below are our three favourite Christmas presents for children this year, for girls AND boys, as approved by Let Toys Be Toys:

Mini Table Tennis (£7.99)


From: The Little Toy Box

Djeco Intro to Origami - Animals (£3.99)

From: Rachel's Toy Shop

Seedling Make Your Own Dino Softie! - Dino(sew)or Kit (£5)


From: Gifts For Little Ones