Libel and Discourse in the Digital Age

Libel, like copyright, is one of the central legal frameworks for governing online activities. It sets the bounds for what can and cannot be said about people in the new media area.  Like copyright law, libel law is a legal framework designed in a pre-digital era, that is somewhat strained in this new digital media age.

I write this with some trepidation. This blog posts touches on gender issues on Twitter, and that is a heated and, at least on Twitter, mostly broken discussion.

Any discussion on sensitive issues online, especially on Twitter, can devolve into a core of reasonable people trying to have reasonable discussions that are surrounded by a much larger group of people (or at least a large number of twitter accounts) who say completely ridiculous and incendiary things. Jimmy Wales response to a GamerGate email regarding the policies for Wikipedia’s GamerGate article is required reading here.

The wonderful thing about Twitter is that it facilitates open to the public conversations about anything at all. These conversations usually involve only people who are genuinely interested in particular topic, which means that the Twitter conversation is usually representative of the topic as it exists in the real world. But a given hashtag is useful and productive, only to the degree that people all agree on what the topic under discussion is, and also fundamentally agree on what is the appropriate means to have that conversation.

Many times, both of those constraints fail, and this is when you get a single hashtag, like #GamerGate being used in at multiple conflicting ways. One way is to have a discussion about “Ethics in Game Journalism”, the second is to launch a coordinated attack on female game journalists and other feminists, and the third is the feminist community using the hashtag to refer to those attacks. In the sense that all three things are happening at once using the same hashtag on Twitter, all of them are equally valid and equally invalid uses of the hashtag. But all three discussions regularly lament that the other two discussions are trying to “redefine” what “GamerGate” “is”. The letter from Jimmy Wales helped me realize that there is an inherent difference between a movement and a hashtag. Before reading that I was deeply confused on how think about “GamerGate” a word whose definition changes dramatically depending on who you listen to.

Generally I think the power of Twitter lies in its capacity to have public conversations that serve only as “signals”, with larger discussions on topics left to more forums that are better suited for comprehensive discussion, like blogs. Twitter is ill-designed to handle contentious issues, in part because Tweets are necessarily atomic in nature. It is too easy to take a single tweet, and then lambast that single tweet as the entirety of someones position. This is not strictly a straw-man tactic because it actually takes a little work to get Twitter to contextualize any discussion. Twitter presents tweets as atoms, and not threads on a topic.

On Twitter, there is a lot of “What I said was X, but what I meant was Y”. As an informaticist, I would call Twitter something like a “Communication Platform with Low Semantic Fidelity”. Which is not an insult to the platform… this is both a “feature” and a “bug”, depending.

So it is with great irony that I found myself having a discussion about libel, on the very platform that makes the issues around libel so complex.

For those who have been living under a rock on Twitter lately there has been a drama unfolding regarding the role Vivek Wadhwa plays regarding women’s gender issues in technology. The play continues to unfold, but here is the outline of the opening scenes:

  • Wadwha makes a statement onstage referring to “floozies”. (have not been able to find video of this)
  • Mary Trigani writes a post entitled Captains and Floozies criticizing Wadwha’s comment.
  • Wadwha comments on the blog post.
  • Trigani reposts the Wadwha’s comment with the title Vivek Wadwha explains
  • Amelia Green Hall, writes QUIET, LADIES. @WADHWA IS SPEAKING NOW which sternly criticized the role that Wadhwa plays and how he plays it.
  • This blog post caused enough of a stir that Amelia was subsequently interviewed by Meredith Haggerty on NPR’s TLDR series. This podcast (which is still available here) is essentially a retelling of Amelia’s blog post in audio form, with no dissenting voice from Wadhwa or elsewhere.
  • Wadwha reacts on twitter saying that the podcast is “libel and slander
  • NPR removes the podcast from their page, although as per normal it will be remembered forever on the Internet somewhere…
  • Twitter presumes that the post was removed because of Wadhwa’s “threats”
  • Wadhwa insists that he wants the post itself restored, but merely wants to have the opportunity to blog in the same space.
  • Apparently, his interactions with NPR makes him believe that he will be able to publish a retort on the NPR site.
  • For whatever reason, Wadhwa’s defense is not published on NPR, so he manages for it to be published on Venture Beat instead.

Which brings us to current. (I will try and update the timeline if things change)

Obviously it’s interesting stuff in it’s own right, but I am mostly interested in the issues around libel. Specifically, I am interested to understand if it was in fact libel, and I am interested to know if the fact that Wadhwa labeling it as libel was a “threat”.

Lets deal with the first issue. Was it libel? Well it turns out that this is not a clear legal question, especially for Wadhwa. You see in the US, the legal test for libel typically has three components (IANAL and I am quoting Wikipedia, so you would be foolish to take this a legal advice).

  • statement was false,
  • caused harm,
  • and was made without adequate research into the truthfulness of the statement.

(from wikipedia)

Unless, you are a public figure, and then libel also includes “Proving Malice”. Again quoting wikipedia:

For a celebrity or a public official, the person must prove the first three steps and that the statement was made with the intent to do harm or with reckless disregard for the truth, which is usually specifically referred to as “proving malice”

Listening to the podcast there are several statements that stand out specifically as false:

  • ..”Has he really been this spokesman for women in tech for years while he is believing that women can’t be nerds because thats because thats like super misogynist”..
  • (on the website of for Wadhwa’s book) “I can get to a photo grid of women it doesn’t list their names..” (Wadhwa points out that such a list lives here)
  • “Wadwha was barely acknowledging the women he was working with”
  • Wadwha was “Gaslighting minimizing marginalizing people who disagree with (him)”
  • The story implies that Wadwha titled his response to Trigani’s post “Vivek Wadwha explains” when in fact Trigani had made that title.
  • The DM’s that Wadwha sent were “non-censual”.

If you listen the to podcast, and you read Wadwha’s rebuttal, it is pretty easy to see understand how Wadwha at least would view these statements as false, harmful, and inadequately researched. Wadwha is painted as pretender, a person who who is taking the role of “real” expertise. The implication here is that there is something essential to the experience of being a women in technology that is required to acquire legitimate expertise about women in tech. At the same time, there is the implication that the experiences of women in tech so vastly distinct that no one person could possibly make useful statements about them as a class.

This is an interesting issue with civil rights in general. There was a time when the racial civil rights movement choose to exclude white supporters from leadership positions. This makes sense when you are dealing with a pervasive attitude that presumes that a particular class is fundamentally incapable of self-representing and/or leadership.

But there is a difference between requesting that someone bow out of a leadership role, in order to further the aims of a social justice movement, and attacking the qualifications and intentions of that same person in the most public way possible (i.e. on the radio and Internet at the same time).

On the other hand, if there is a person claiming leadership in a social movement, while saying or doing things that hamper that movement, it is a natural reaction to eventually (after back channel discussions have failed) to out that person in public.

So which is it? Is this a necessary exposer in defense of an important social movement, or it is petty dramatics within a movement that should be above such theatrics?

What the hell do I know? Although I am at least a little interested in anything that qualifies as social justice, I am hardly an expert in this area. I don’t know any of the parties involved and I have no familiarity with the book and research body in question.

What I am interested is how libel works in the Internet age. What is fascinating specifically to me is the degree to which Wadwha is being criticized for calling the podcast “libel”. It is fairly clear to me that IF the contents of the podcast are misrepresentations, then Wadwha is just being publicly attacked. The whole podcast was about him, not about “men speaking for women generally”, but just about him and what he was specifically doing wrong. The podcast implied that he was a lecherous, misogynist, manipulative plagiarist. IF those things are not true about him… then does he have the right to say “This thing that is happening is slander and libel” without inappropriately using that language to squelch criticism.

According to Wadwha, he has made no legal threat, he did not ask for the article to be taken down and, in fact, he has asked for it to be restored. That does not generally sound like the acts of someone who is seeking to muzzle critics.

What I find fascinating, is the apparent consensus that merely labeling the podcast as libel IS itself a legal threat.

Here are some reactions from two lawyers who work for the EFF (an organization I admire and donate to)

And then here..

Lastly this is one specific quote from someone who has been on the other side of this.

However, I did find this gem from @DanielleMorrill, who was obviously researching this earlier than I was. She found places where Wikipedia policies cover these issues…

For my part, I cannot help to empathize with Wadwha. My family has had some pretty nasty run ins with people willing to publish false things about us. If someone in traditional media decides to smear you, its nearly impossible to undo the damage. At least Wadwha had the opportunity to tell his side of the story, an opportunity my family never got. 

Apparently, the consensus on the Internet, and what I would advise people do on this, is to just say. “Hey that stuff you wrote/said about me is not true, and its pretty hurtful and you really should have researched that better” instead of actually coming out and saying “Thats Libel”. Its pretty clear that Wadwha tried to take a position of “You have libeled me, but I am not planning on suing you, I just want to achieve balance”, and from what I can tell, that has blown up in his face, and possibly made things worse for him. 

I have certainly learned several things from this incident that will make me slightly less likely to put my foot in my mouth: Specifically…

  • I should be careful not to speak over other people on panels. I am frequently the most vocal and opinionated person on a panel. Audiences frequently ask questions specifically to/for me, and moderators will frequently favor me because I can be entertaining. But apparently when Wadwha does the same thing he is percieved as “taking the air out of the room” etc etc. I would never want my fellow panelists to feel they don’t have a voice b/c of me. I will have to work on that.
  • Apparently there is a whole contingent of women who have been so completely harassed by DM’s that saying something like “A non-consensual DM” actually makes sense to them. I had no idea that Twitter harassment had reached that level for women. I mean you have be brave or crazy to let someone know you are a female user on Reddit (which is sad), but I thought Twitter was a “safe place”. I was wrong.
  • When someone labels themselves as rude or mean or otherwise thinks that it is a good idea explicitly admit in their twitter profile that they are difficult to deal with… believe them. They are not kidding. Its one of these things. Lookup the Far Side cartoon that says: How Nature says “Do not touch”. Its just like that.
  • I need to be careful to explicitly not speak “for” the people I personally advocate for (which in my case is usually patients) b/c this can be disempowering. I need to find ways to advocate without being presumptuous, which is harder than it sounds.

Thanks for reading, I may well update this post based on reactions from Twitter and elsewhere.








Google Health: influential, controversial and gone.

Google Health is no more.

Thats a shame, because I am writing a book on Health IT for O’Reilly and before this announcement, my rough draft featured Google Health extensively.

I guess this is better, though, than having Google Health shut down just -after- I finished writing my book.

Of course, I am going to have to change lots of content in the book, but Google Health will still be there.

For a project that no longer exists, it will end up being one of the most influential Health IT projects of our era. Google Health, and for that matter Google generally, has always been willing to make strong statements when they evaluate technology and technology protocols. In fact, Google has made two controversial technology picks and the opening and closing of Google Health.

At the opening Google decided that they would support CCR (Continuity of Care Record) from ASTM and AFFP rather than the much more complex CDA/CCD from HL7. The CCR vs CCD debate has been one of the most controversial and long-standing arguments in Health IT. HealthVault, the Microsoft product which survives Google Health has always elected to support both standards. But Google insisted that the CCD standard was too complex, and not only insisted on CCR, but a smaller subset of that standard.

Now, as the end support for Google Health, Google is choosing to allow export under the Direct Protocol. Again this is the simpler of the two protocols that is supported by ONC to be part of the NWHIN (the precursor to the Health Internet). The other protocol, IHE, is getting no love from Google Health.

Goodbye Google Health, whatever else I may have said about you, I must admit that you made some ballsy technical stands.


VistA License debate: its about proprietarization

It looks like WorldVistA is, for now, holding fast to the GPL and AGPL for VistA licensing. I have been a vocal advocate for compromising with DSS and Open Health Tools around the LGPL. The LGPL would allow for some innovations to be licensed under the GPL, and others, in the core of VistA to be compatible to bundle with proprietary software.

Recently, Skip McGaughey was quoted in modernhealthcare as saying:

“I believe it’s all about community-building,” McGaughey said. “I believe people have focused too much on technology and licenses and they need to focus on the care of individuals. If we can switch the focus from licensing and technology—the VistA community has a tremendous opportunity to fundamentally alter care throughout the world.”

“They’re starting from a base that has a tremendous knowledge base, built by care providers, tested and modified over a long period of time,” McGaughey said. “So, the opportunity is tremendous. So what we have to do is change the focus and quit worrying about the individual ‘me’ and talk about the ‘we’ together,” he said.

“If we enable an environment for people to collaborate in building infrastructure that everybody can use, to share the expense, what we can do is build the integration and interoperability and build a collaborative spirit,” McGaughey said. “Then people can climb the value stack to provide added value that can make money.”

It should be noted that I was not at the talk and did not hear exactly what Skip said. I know Skip and I know that he is a good guy, I think he intended to bring a message of reconciliation regarding licensing which is very good.  I may actually agree with Skip’s position, but I cannot agree with this quote. While I am in favor of compromising with Open Health Tools, the position of WorldVistA on insisting on the full GPL is not unreasonable and it is certainly not anti-people.

Lets be clear, when you talk about proprietary friendly licenses in medicine, you are not talking about a way for people to “make money” or “earn a living”, you are talking about a mechanism that traps software consumers into a monopoly relationship with a software provider.  Proprietary software in healthcare is so famous for abusing this monopoly position to the detriment of its clients that the issue is being investigated by congress and is even the subject of in-depth lampooning.

To trivialize licensing and indicate that is about “people” is typical and insincere. The software license defines the basic power structure of a relationship between software developer and software consumer. Full copyleft ensures that the developer and the consumer are always equals. Proprietary licenses ensure that the software vendor is in control. Open Source licenses that allow for proprietarization are a grey area. If software consumers are careful only to use Open Source components, they can maintain a balance of power, but if they ever allow a proprietary module into their ecosystem, then the license for that module puts some vendor back in the drivers seat.

If there was an “open” movement in the prisons around the world so that all prisoners were limited to just one shackle, they would still remain prisoners. Similarly as long as one software vendor can dictate terms to a clinic or hospital, they have a problem. Proprietary vendors who do not abuse their clients are like kind wardens. Just because they are nice a prisoner, does not change the fundamental power dynamic in the relationship.

The LGPL is a compromise precisely because it allows people who value freedom to work with people who are willing to compromise with proprietary vendors.

When you start hearing people saying things like “value stack” and “let people make money”, you are hearing the argument that being trapped is sometimes OK, if what you get for it is worth it.

This kind of power dynamic is precisely what prevents communities from trusting each other and cooperating. If you want to create community, you better not ignore licensing concerns.


Enabling open core

What license should you consider for your new Health IT platform? As you consider that, you should think carefully about your user audience. You want people in the Open Source community to develop against your code. You want people to add value to your core. To achieve this you have to recognize that our community does not share universal motivations. The most important detail that you need to understand about our community is the ways in which we we relate to proprietary software.

There are two general ways of thinking about how to relate to proprietary software within the FOSS movement.

There are those that believe that the most important potential feature in software is the ability to change and share it without restriction, which is software freedom.

Others in the FOSS community feel that the important issue is that we have a good method for collaboratively developing good software and if people want to make money selling software that restricts freedom (the definition of proprietary software) thats fine.

I am solidly in the first camp. However, for the purposes of this article I will treat them as equally valid perspectives. This respect for an opposing opinion is crucial for the FOSS community because we want to be able to develop software together!

People in the first group we might call freedom sticklers and the second group we will call pragmatic openers.

Before we move on we should discuss the basics of licensing. I have written on licensing before, but you will find my freedom stickler bias in those writings. I will try to avoid that here.

The most important thing to understand about licensing (for this discussion) is to consider the perspective of the person who accepts a license with the intention of redistributing the sourcecode with other software.

Imaging that Ozzie the Originator released some valuable software called coreware. He decides to release the code as open source! He must consider several perspectives as he chooses a license.

Freedom loving Fredi 😉 wants to ensure that whenever possible software that he writes will not be used to allow someone to control another person. Fredi appreciates the value of coreware and writes a module for it called Fredis freely scanning module.

However Proprietary Pat also has scanning application that has far more functionality than Fredis module. She likes the idea of open source but, for whatever reason, is not in a position to release her own software under a FOSS license. It is important to note that if Pat did not have a functionally better scanning module than Fredi, there would be no reason for Ozzie to consider her interests. Ozzie knows that when an open option is available, functional and stable end users will always prefer it. This can be called the Open Source Sets the Floor effect.

Pat has software patents and proprietary software that she feels must be protected from the full GPL (a license popular with Fredi and his ilk). Certain provisions of the GPL can have the effect of devaluing software patents, or at least that is how patent owners often feel about it.

Then there is Indifferent Ingride who writes a printing application. She has no specific position on proprietary vs. FOSS. She just wants her printing software to be as useful to as many people as possible.

Ingrid, Fredi and Pat would all be willing to help Ozzie improve coreware assuming they are happy with the license. Ozzie knows that if everyone is not happy, someone will start a competing project with a license more to their liking. This would dilute the talent pool available to work on coreware!

Ozzie the Originator is a bind. He knows that he can chose a proprietary-friendly license like the Mozilla Public License or the Eclipse Public License that will make Pat happy. But Fredi will never agree to a license that would be incompatible with the licenses that ensure that he can keep his own software freedom respecting. For people like Fredi there is no substitute for two very popular keep-it-free licenses the GPLv3 and the AGPL. The Free Software Foundation keeps a list of licenses that are and are not compatible with the GPL.

What is Ozzie to do? How to keep both Fredi and Pat happy? The first place to look is the LGPL which stands for the Lesser General Public License. This license does two important things, first both Pat and Fredi can use coreware as the basis for the coreware + someothermodules under their preferred license. You can think of coreware + somemodules as a “rollup”.

From a licensing perspective some open source rollups are loosely coupled (like GNU/Linux distros) while other rollups are more tightly coupled (like the Linux kernel itself). Tightly coupled rollups must have identical or fully compatible licenses. Most thinking says that if one software package locally calls the functions exposed in another software package, then they are tightly coupled. (Any VA VistA -server- rollup is likely to be considered a tightly coupled rollup while the relationship between VistA clients and VistA servers would probably considered loosely coupled). It should be noted that these ideas are generally accepted as flowing from a consensus understanding by the Open Source community lawyers of the copyright rules of derivative works, not all of them look at this way.

Ingrid can release her printing component under the LGPL too; essentially adding it to the core… Both Pat and Fredi will then benefit from Ingrids code. Of course end users will have to chose between Pats code and Fredis code because their chosen licenses are incompatible. Each of them is creating a new rollup of coreware with a different family of licenses. While coreware can be included in each rollup, the two rollups are license incompatible.

Both Fredi and Pat can collaborate on coreware with a LGPL codebase because they know that in the end the license of their own module will determine how the LGPL acts for the their users. For Fredis users the LGPL upgrades to the GPL and the AGPL, but for Pat, the LGPL does not interfere with her proprietary license.

Everyone is happy. (or close)

Is the LGPL the only license that is intended to work in this way? No, but it is the license that is specifically designed to solve this problem. Another license that attempts to be compatible with GPL/AGPL projects is recent iterations of the Apache license. Apache is generally considered more proprietary friendly than the LGPL. If Ozzie uses the Apache license, Proprietary Pat could make changes to the internals of coreware, that she does not need re-distribute. Both Apache and the LGPL give here the right to “hoard” or “protect”, depending on your perspective on the matter 😉 her module. But Apache also allows her to horde/protect her changes to coreware itself.

The reality of licensing is that at least two parties must be satisfied with the license. The end user and the most significant contributor. The GPLv2 made Torvalds happy, and his end users tolerate it. Everyone else in the Linux universe tolerates the GPL for Linux because the value of Torvalds original contribution and those contributions he was able to amass around that original contribution. Together these are too valuable to try and replicate. Companies that hate the GPL and everything it stands for, like Microsoft, contribute GPL code to the Linux kernel because Linux is too important for them to ignore. (P.S. If you hear someone talking about these issues in terms of viral or non-viral, you can bet that freedom is not a priority for them)

For VA VistA we have a conundrum, the originator of the code, the US government, has left the code basically licenseless. I believe this means that the choice if preferred license should be up to the most substantial third-party developers. I believe that the most substantial way to make VistA better is to make contributions that make further development easier. MUMPS is a great language but it makes VA VistA inaccessible to most programmers. Given that I believe the most significant third-party contributions to VA VistA are (in no particular order):

  • Medsphere’s OVID – because it lets you code for VistA in Java. (AGPLv3)
  • EWD from M/Gateway – because if you already code in MUMPS you should still be able to write web interfaces. (AGPLv3)
  • Astronaut VistA – because you want to be able to install… With all of the above development environments, in seconds…. Not months… (AGPLv3)
  • TMG-CPRS – because adding patients and correcting demographics should be easy. (GPL v2 or later as per the core WorldVistA EHR license)
  • OpenVistA CIS – because we want to be able to run VistA without Windows. (AGPLv3)
  • Timsons Fileman – VistA Fileman is an important core VistA component that has had many improvements since George Timson left the VA. (LGPL)

-all- of these applications do not just make VistA better, the are Platform Improvements. These improvements are designed to spur new innovation by making hard things easy or previously impossible things tractable.

-all- of these innovations (as far as I can tell) are available under either the GPL or AGPL.

I hope that it is now obvious why most of the VistA community believes that if there is to be collaboration between the Fredis and Pats of the VistA community it must be around a LGPL VistA core.

Soon DSS will be releasing a version of vxVistA under the Eclipse Public License. That license is not compatible with the GPL. If vxVistA is released under the EPL none of the above platform improvements would be available to vxVistA. However all of them are available to users of OpenVistA, WorldVistA and Astronaut VistA, all of which use GPL variants.

I have lauded the release of vxVistA but I fear that as a FOSS project, it will be stillborn because of the EPL. Users will be forced to choose between vxVistA and the considerable menu of proprietary partners whose patent and proprietary interests are satisfied by the EPL, and a projects where VA VistA is being improved -as a platform-

If we were talking about one or two minor improvements that might be available under the GPL variants the I would not take this position but practically, the most important member of any opencore community is not Fredi or Pat but Indifferent Ingrid. Ingrid wants to work with the best platform and contributes in such a way that it makes the platform itself better. Whoever wins the attention of Ingrid, wins.

These lessons are applied in the specific context of VistA, but I hope that is clear that these issues are generalizable to any Health Information Technology (HIT) platform.

(Update 10-13-09 Medsphere has released its server project under the LGPL)

(Update 10-16-09 Ben from Medsphere has responded to my post)

(Update 10-18-09 Thanks for Theodore Ruegsegger, who pointed out several serious errors… fixed)


Claims data in PHRs

Today the Boston Globe has published an article about Dave deBronkart’s problem with claim data in his Google Health PHR. I think it is awesome that the main stream press is picking up on the problem of using billing data for clinical work!

A little digging reveals that there is an much better post over at that details exactly what his experience is.

I have been aware of this problem for some time. For me it all started when CVS Minuteclinic imported a ‘condition’ of ‘Blood Pressure Screening’ as  ‘Active’ condition onto my record.

Why did they do this? Because their system must have an ICD code for the purposes of billing for my procedure, even though I payed in cash.

One of the best things about being deeply involved in both FOSS Health IT and a blogger, is that when something hits the main stream press, I get to prove that ‘I told you so’ with reference to posts that are months or even years old. Heck, I bet that ‘I told you so’ feelings are a full 25% of my motivation to blog! That puts it way ahead of ‘joy of shameless self promotion’ and ‘muuust raaannt’ as motivation components!

The problem here is that the current diagnosis onotology system in the United States is based on billing data. With the migration to ICD 10, this problem will only get worse. Most doctors do not really understand how to use ICD 9, and ICD 10 is muuuch bigger.

I got wind of this article from the Modern Healthcare Health IT Strategist.