Can We Create A Public Internet Space Where The First Amendment, Not Private Terms Of Service, Rules?

from the that-would-be-nice dept

Fri, Aug 22nd 2014 7:39am — Mike Masnick

Over a year ago, Tim Karr had an interesting and important post about openness on the internet. While much of it, quite reasonably, focuses on authoritarian governments trying to stomp out dissent online, he makes an important point towards the end about how the fact that content online is ruled by various "terms of service" from different private entities, rather than things like the First Amendment, can raise serious concerns:

And the threat isn't entirely at the hands of governments. In last week's New Republic, Jeffrey Rosen reported on a cadre of twentysomething "Deciders" employed by Facebook, Twitter and YouTube to determine what content is appropriate for those platforms -- and what content should get blocked.

While they seem earnest in their regard for free speech, they often make decisions on issues that are way beyond their depth, affecting people in parts of the world they've never been to.

And they're often just plain wrong, as Facebook demonstrated last week. They blocked a political ad from progressive group CREDO Action that criticized Facebook founder Mark Zuckerberg's support of the Keystone XL pipeline.

This case is just one of several instances where allegedly well-intentioned social media companies cross the line that separates Internet freedom from Internet repression.

And it actually goes beyond that to some extent. As well-intentioned as these companies might be, the example above shows that they'll cave on issues all the time.

"Hosting your political movement on YouTube is a little like trying to hold a rally in a shopping mall. It looks like a public space, but it's not -- it's a private space," writes Ethan Zuckerman of MIT's Center for Civic Media. "And your use of it is governed by an agreement that works harder to protect YouTube's fiscal viability than to protect your rights of free speech."

Zuckerman compares the social media executives to "benevolent despots" who use their corporate terms of service -- not the First Amendment -- to govern their decision making about content.

In many ways, it may be even more complicated than Karr and the people he quotes describe. First off, even if you have a company that claims it will respect a right to free expression, it's not their decision alone to make. As we saw, for example, with Wikileaks, when there's strong pressure to silence a site, the downstream providers can get antsy and pull the plug. Upstream hosting firms, data centers and bandwidth providers can all be pressured or even threatened legally, and usually someone somewhere along the line will cave to such threats. In such cases, it doesn't matter how strongly the end service provider believes in free speech; if someone else along the chain can pull things down, then promises of supporting free speech are meaningless.

The other issue is that most sites are pretty much legally compelled to have such terms of use, which provide them greater flexibility in deciding to stifle forms of speech they don't appreciate. In many ways, you have to respect the way the First Amendment is structured so that, even if courts have conveniently chipped away at parts of it at times (while, at other times making it much stronger), there's a clear pillar that all of this is based around. Terms of service are nothing like the Constitution, and can be both inherently wishy-washy and ever-changeable as circumstances warrant.

This issue keeps coming up. A few months ago, Jillian York wrote a powerful piece about how we run a risk in treating private social media spaces as if they're public:

The trouble with private companies controlling our speech is that they are subject not only to shareholders, but also to governments. Many of the most popular social media companies – most notably Twitter, which once called itself “the free speech wing of the free speech party” – profess a commitment to free expression. But in their efforts to provide access to their services to users around the world, these companies often face an unfortunate choice: to avoid being blocked by a government’s censorship apparatus, they must sometimes agree to take down content, at least in a given country.

[....]

In any case, when a company unnecessarily complies with censorship orders from a foreign government, it sends the message to users that profit is more important than free speech, something that all of the aforementioned companies count amongst their values. Furthermore, by making the company – and not the government issuing the orders – the “bad guy,” it becomes harder for users within a country to fight back, and less clear to users that the governments seeking censorship are the real enemy.

And now this issue is coming up again in a slightly different context, with the decision of various social platforms this week to block the video of James Foley (or even linking to it). Glenn Greenwald has now chimed in on the subject as well, and makes the key point about how, even if you understand the reasons for why these companies chose to do it (and, it might not even be "valuing profit over free speech"), it creates a real challenge for free speech when someone (anyone) gets to decide what is and what is not allowed:

Given the savagery of the Foley video, it’s easy in isolation to cheer for its banning on Twitter. But that’s always how censorship functions: it invariably starts with the suppression of viewpoints which are so widely hated that the emotional response they produce drowns out any consideration of the principle being endorsed.

It’s tempting to support criminalization of, say, racist views as long as one focuses on one’s contempt for those views and ignores the serious dangers of vesting the state with the general power to create lists of prohibited ideas. That’s why free speech defenders such as the ACLU so often represent and defend racists and others with heinous views in free speech cases: because that’s where free speech erosions become legitimized in the first instance when endorsed or acquiesced to.

The question posed by Twitter’s announcement is not whether you think it’s a good idea for people to see the Foley video. Instead, the relevant question is whether you want Twitter, Facebook and Google executives exercising vast power over what can be seen and read.

Given all of this, it seems like it would be good to have some sort of even safer "public space" online. Karr, in his piece from last year, suggests that companies that want to be supporters of an open internet be much more transparent about their moderating decisions, allowing for public review:

To be more accountable to users, these platforms should adopt publicly transparent processes allowing a full view of every decision to block content. And these sites should invite feedback from users as a check against abuses.

I like that idea, though I can see how it would be difficult to implement in practice. But, really, an even bigger question is how do we set up a space on the internet that isn't prone to such issues. I'd hate to think that it would need to be hidden away in the "dark web" like the infamous Silk Road market, but I'm not sure how else one would create such a truly safe harbor that is impervious to outside attempts to block.

York hopes that companies will "stand up" against such censorship requests, but it always seems like there's a weak link somewhere in the chain. It would be great if everyone agreed to protect the speech, but when complainants can go to ISPs asking for filters, to upstream providers, to server hosting companies, to domain registrars and more, you would need to build a top to bottom wall of organizations totally committed to free speech. I'm not sure that's possible.

And that leaves us with quite a conundrum if you're looking for a true venue for free speech online. It's almost technically not truly possible.

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Filed Under: blocking, censorship, first amendment, free speech, james foley, terms of service, upstream providers

72 Comments

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Ninja (profile), 22 Aug 2014 @ 6:50am

The only way to make a platform truly free is to make it so the content cannot be deleted. At most it can be filtered if you choose so and based on public efforts (ie: like the reported comments here).

This poses a question of how to deal with criminal content (ie: child porn). I personally don't know how to deal with it but my best bet would be to simply let it be "hidden" by the community and go after those who uploaded it. Thinking Youtube for instance you can find out who uploaded some material so it wouldn't be hard to reach that person.

But then it poses yet another question: what if the laws of the country enable censorship or Govt behavior that would be criminal by itself?

You see, in the end the ideal scenario would be one where we accept there will be idiots, assholes and criminals and counter their behavior with "good speech". That child porn that was posted? It will be buried under the weight of billions of nice pictures and even if it is still accessible they'll serve as a reminder of what's worse in humanity and what not to do, what not to follow.
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Anonymous Coward, 22 Aug 2014 @ 7:52am

"a cadre of twentysomething "Deciders" employed by Facebook, Twitter and YouTube to determine what content is appropriate for those platforms -- and what content should get blocked. "

Maybe this is what all the H1Bs are for. I imagine there are plenty of experienced Chinese who would apply for the positions.
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Rich Kulawiec, 22 Aug 2014 @ 7:58am

"And that leaves us with quite a conundrum if you're looking for a true venue for free speech online. It's almost technically not truly possible."

That's not entirely true. Usenet comes awfully close: it's mature (been around for decades), it's robust, it's distributed, it's not under any single entity's control, and it's extremely efficient at distributing content.

It's not fancy, it's not trendy, and -- unfortunately -- there are a heck of a lot of people who consider themselves Internet-literate yet are not fluent in the usage of this basic piece of Internet technology. But it works and it has evolved its own defenses against censorship and other forms of abuse.
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Lisa Westveld (profile), 22 Aug 2014 @ 8:04am

Applying the "First Amendment" on the Internet would be worse. The First Amendment is a law from the United States of America, and although other countries might have similar laws, they might not want to follow US laws.
The name for it is completely wrong and will upset a lot of Americans, enforcing their ideas that the USA is trying to gain more control over the Internet, while they actually want less influence.
Besides, the Internet is asking for new, International laws. It doesn't need old, restricted laws from one specific area of this planet. So, the First Amendment is hereby downvoted as Internet-law.
Sorry if I hurt your feelings, but please keep in mind that the majority of people on this World are NOT Americans...
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Sneeje (profile), 22 Aug 2014 @ 8:06am

Really struggling with this one... "a space on the Internet?"
How would that even work. If it is a defined space, wouldn't it follow that it would be walled and therefore have a barrier to entry?

Also, will it include existing app and website content infrastructures or require new ones? Meaning, would Facebook exist in this new space, but be subject to certain rules/expectations or would an entirely new app infrastructure be required?

Maybe I'm not understanding the suggestion.
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J, 22 Aug 2014 @ 8:07am

We already have three established solutions: Usenet for newsgroups, IRC for text-based chat, and Mumble for VoIP. All of these technologies let anyone to host their own server, and generally allow unmoderated discussion.
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Avatar, 22 Aug 2014 @ 8:16am

The problem with this scenario is that good content doesn't exactly pour into an unmoderated forum. And why would it? That forum will quickly fill up with:

-SEO spam generated by a tide of automatic scripts with no interest in participating in the conversation, just in generating links they fondly imagine will affect Google's rankings (even on sites with robots.txt settings that prevent that from happening, sigh)

-the aforementioned "let's post something terrible to make people lose their lunch" crowd, who are actively trying to screw with people because they're misanthropic kids

-cranks, who are willing to participate in the discussion, so long as that discussion is why alien mind control is why Obama is a Muslim etc.

You can't say "oh, well, there will be good speech to counter it!" because people interested in good discussions will take one look at the fetid spew already up and say "ugh, no thank you, I will take this to a moderated forum where this crap is not allowed." And then they go. This sort of thing happens to private forums which let their moderating standards slip all the time, as it is - there's no reason to think that just turning the moderation completely to "off" would counter that effect.

Take a look at Reddit - definitely an example of a public forum on a bewildering variety of fractally-complicated topics, which thrives on user moderation to designate items of interest and to push off the crap. But those forums are all moderated, and the ones that are poorly-moderated are also poorly-read because of the crap factor pushing people out of the poorly-moderated spaces.

Even 4chan has moderation to remove outright-illegal stuff, and most of the forums there are moderated a good bit more than that. The one that is not, is widely regarded as the open sewer of the internet - it is simply not a place of serious discussion.

You can't completely turn moderation over to the general public via automated systems, because those systems will be gamed by the malicious with too much free time on their hands (this is how Moot of 4chan became Time's person of the year once) or more systematically by the SEO spammers who have a financial interest in pushing their links up up up. At some point you need human intervention to step in and say "lol, no, guys", and having that intervention available (and used, periodically) is what keeps people from taking advantage too often.
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Rich, 22 Aug 2014 @ 8:18am

Re:
Good for you. I couldn't care less about your idiotic "downvote" of one of the greatest laws ever written.
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Anonymous Coward, 22 Aug 2014 @ 8:20am

Oh, the horror! PUBLIC + INTERNET + 1st Amendment = Secret Laws.
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Anonymous Coward, 22 Aug 2014 @ 8:34am

The Law
Publicly traded companies are required by law to maximize profits. That means that that they are required to do whatever is in the best interest of the company, and if that means squashing speech, then so be it.
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Anonymous Coward, 22 Aug 2014 @ 8:38am

Re:
Did you not read the article? Could you not tell that the companies were US companies. Try actually reading beyond the headline before getting your panties in a wad.
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Chronno S. Trigger (profile), 22 Aug 2014 @ 8:51am

Re:
But even Usenet has central servers that can be censored and shut down. I was thinking that a bastion of free speech online is, oddly enough, 4chan, but it suffers from the same problem. Overzealous mods can seep into the system.

The problem is that there is no such place, in cyberspace or meatspace. Where can you truly practice freedom of speech without the risk of someone trying to stop you? And I don't mean private citizens like those Westboro assholes, I mean cops that think they're above the law.
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ysth (profile), 22 Aug 2014 @ 8:52am

Decentralize
Decentralize social media, so that there is no one in the position to censor, except by explicit software change.

- @ysth on twister
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Dave Cortright (profile), 22 Aug 2014 @ 9:00am

What about web sites on .edu and .gov?
Seems to me that any site hosted by a public institution would be the place to start. Has any issue of free speech on sites like these vs censorship gone through the courts yet? Maybe it's time to put some to the test...
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John Fenderson (profile), 22 Aug 2014 @ 9:01am

Re: Re:
"But even Usenet has central servers that can be censored and shut down"

Kinda, but not really. Usenet has hundred or thousands of such servers (I don't know the exact number anymore), some run by private individuals. Those servers engage in what amounts to a P2P system to share the news between them. You'd have to take them all out to engage in effective censorship.
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Anonymous Coward, 22 Aug 2014 @ 9:11am

Govern through the people, let the community decide via a hide and un-hide option or an eye open or eyes closed button , this way it's users who get to decide what they feel is with-in their respective tolerance levels, have settings , that you can choose as soon as you enter the site via a splash screen.
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cridania, 22 Aug 2014 @ 9:13am

Where can you truly practice freedom of speech without the risk of someone trying to stop you?

This is the very question
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Ninja (profile), 22 Aug 2014 @ 9:31am

Re: Re: Re:
It has been tried but the best they could do was make the Usenet services filter the content. The only thing that is actually taken down is criminal content (though you can find such content every once in a while). I think targeting the bigger servers would be enough to effectively censor them, specially if they are all located in the US.
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Anonymous Coward, 22 Aug 2014 @ 9:32am

Re: The Law
Publicly traded companies are required by law to maximize profits...

Citation needed.

Required by their shareholders, yes.

AFAIK no law in the US requires any company to show a profit. As long as the company pays it's taxes, the government could care less if it showed a profit.
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Chronno S. Trigger (profile), 22 Aug 2014 @ 9:42am

Re: Re: Re:
But if Usenet has hundreds or thousands of servers, then we're not talking about one thing, we're talking about a technology. That's like saying "Can we censor home networks?" No, there are too many of them and they cannot be controlled by one central entity. But each home network has their own controllers that can go overboard. You can't censor all of Usenet all at once, but each server has the ability to do their part.

But that's my point. Public spaces in the real world are suppose to be open to people who want to speak their mind, but they aren't. They cannot be controlled by one authority, but each and every one has the risk of going above and beyond.
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Anonymous Coward, 22 Aug 2014 @ 9:46am

The other issue is that most sites are pretty much legally compelled to have such terms of use
Really? Do you have any more information on that? Has any site actually lost a court case because they didn't have terms of use or they weren't good enough?

What would be wrong with just saying "by leaving a comment you give [SITE NAME] an irrevocable right to distribute it, and [SITE NAME] has no responsibility to you"? I think most agreements are basically that, but in several thousand extra words nobody can understand. (And courts have generally upheld simple documents, e.g., "In case I die in this mess, I leave all to the wife" or "Protective Covenant. 3 yrs. - 5 mi.").
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Anonymous Coward, 22 Aug 2014 @ 9:47am

Re:
Applying the "First Amendment" on the Internet would be worse.

We're not talking about applying it to the entire Internet. Facebook and Twitter should be free to have their own policies. We're talking more about having a *place* on the Internet for truly free speech. I agree with the article that it's pretty much impossible, by the way. Governments can always pass laws against visiting particular content, and can pass laws against whatever cute system you use to get around their blocks. Registrars and even TLD's have to be located somewhere, and whatever country they are in can force them to take certain actions. The best we can hope for is to set up a website in a free-speech-friendly country and hope governments allow people to access it.

The name for it is completely wrong and will upset a lot of Americans

I have no idea why it would upset Americans. We tend to like the First Amendment - and those of us who don't like it tend to not say so. Did you mean it will upset non-Americans?

Besides, the Internet is asking for new, International laws

Like what, the UN? You'll end up with way more censorship than we have now, as each country tries to push for its own exceptions. International bodies have problems - how do you decide which countries get how many votes? One per country? Should Fiji get the same vote as countries a thousand times bigger? Population? Should China get more votes than several continents put together? And none of the representatives are elected. And is "the Internet" really asking for new laws?

It doesn't need old, restricted laws from one specific area of this planet.

Freedom of speech doesn't go out of style just because the amendment is a few hundred years old, and the concept isn't invalid because the amendment is American. In an international context, "First Amendment" might not make sense, but surely "freedom of speech" does?

You've made no real argument here besides "it's American so I don't like it."
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John Fenderson (profile), 22 Aug 2014 @ 9:52am

Re: Re: The Law
When people say this, I think they're talking about fiduciary responsibility. What is properly responsible depends on the articles of incorporation, and corporations are legally required (in civil, not criminal law) requires that companies adhere to what the articles of incorporation say.

For some corporations, "maximizing profit" is not the primary goal, and those companies have no such legal responsibility. For others, it is indirectly legally required (the articles specify the requirement, and civil law requires adherence to the articles.)

This is a subtlety that lots of people aren't aware of, I think.
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Anonymous Coward, 22 Aug 2014 @ 10:01am

Re: Re: Re: The Law
I found this article talking about maximizing profit, but I don't see any reference to prospectuses or articles of incorporation (e.g. in the Craigslist case, where it could have been useful). I remember reading something like that before; do you have a link?
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DannyB (profile), 22 Aug 2014 @ 10:02am

Did you really have to ask that question?
No.

We cannot create A public Internet space where the first amendment rules.

Not as long as there is Copyright. Copyright is fundamentally in conflict with freedom of speech and free expression. That is why the DMCA is so widely abused to silence free speech by people who have no copyright rights or claim over the material being silenced.
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rapnel, 22 Aug 2014 @ 10:06am

Re:
"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness."

Speech, dear person, freedom of speech. Although codified into "US Law" it is one of those singular, uncontestable attributes that defines a free person.

If you believe that simply because our first amendment codifies freedom of speech into American law that it is tainted and can not behoove your non-American existence then you are, sadly, missing the point... by a very wide margin.
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rapnel, 22 Aug 2014 @ 10:08am

Re:
? .. What?
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Rich Kulawiec, 22 Aug 2014 @ 10:31am

Re: Re:
"But even Usenet has central servers that can be censored and shut down."

No. It does not. Usenet has NO central servers, and never has.

Now...it does have some servers that are more well-connected than others. And it does have some that have more capacity than others. Both of those things have always been true. But it's decentralized-by-design, so an adversary who manages to take out (let's say) 50 servers via legal threats or DoS attacks or anything else will only delay the propagation of articles, not stop it.
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Mason Wheeler (profile), 22 Aug 2014 @ 10:31am

Wow. That bit about Facebook is pretty damning.

Google: Don't be evil. And we occasionally make bad decisions, but when called on it, we generally try and make it right.

Facebook: Don't even bother pretending. Build the system on someone else's stolen work, blatantly declare that "privacy means whatever I say it means" and "users don't care about privacy anyway," screw investors over with insider trading, support climate destruction, disappear critical posts, and laugh all the way to the bank.

Why doesn't Mark Zuckerberg just grow a big black mustache and twirl it while he's at it?
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sorrykb (profile), 22 Aug 2014 @ 10:35am

Re: Re:
No need to freak out, folks. I think part of Lisa's point is that Americans do have an unfortunate reputation of arrogance and thinking of the U.S. as the center of the universe. Coupled with a history of military intervention, it can make people uneasy.

So... how about just using Article 19 of the Universal Declaration of Human Rights:
Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.

Although if we wanted to cover all things listed in the First Amendment, we'd also have to include Article 18 (freedom of thought, conscience, and religion) and Article 20 (freedom of peaceful assembly and association).
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Chronno S. Trigger (profile), 22 Aug 2014 @ 10:36am

Re:
"Do you have any more information on that? Has any site actually lost a court case because they didn't have terms of use or they weren't good enough?"

He said "compelled" not "required". Since a company residing in the US is required to follow US laws, they are required to remove some content. Malicious software, copyright infringing content, hate speech, that kind of thing. The easiest way to get around any end user problems over that is to have them in the terms of use.

The same can be said about any company residing in any country.
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Rich Kulawiec, 22 Aug 2014 @ 10:39am

Re: Re: Re: Re:
Targeting some of the larger servers would certainly affect those servers, but would have no impact on the rest of Usenet.

There are tens of thousands of servers scattered all over the world. New ones can be set up quite easily, and were there a concerted effort to target the existing ones, no doubt they would be. The hardware/bandwidth resources required to host the text newsgroups are quite modest by 2014 standards, the software is all open-source, and there exist simple packages to facilitate "leaf" nodes, which can run on something like a laptop, tablet, or phone.

Note also that Usenet servers do NOT have to communicate over IP networks: they work just fine over UUCP or sneakernet or anything else. The entire design is highly fault-tolerant and delay-tolerant, which is one of the reasons it's so resilient. (In many ways, Usenet is much more reliable than what most people think of as contemporary P2P networks, albeit at the cost of propagation delays.)
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Rocco Maglio (profile), 22 Aug 2014 @ 11:02am

Re: The Law
I need a citation for this claim the corporations are required to maximize share holder value. Here is the wikipedia for http://en.wikipedia.org/wiki/Shareholder_value. Are you claiming there requirement is for short term or long term share holder value. If we are talking long term, if your users leave how much is your site worth. An internet companies value is closely related to the number and enthusiasm of their users, so we are definitely not discussing long term value.
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Chronno S. Trigger (profile), 22 Aug 2014 @ 11:09am

Re: Re: Re:
Usenet is a technology just like the Internet. The newsgroups are the sites and can be moderated. My point is still vary much valid. Where can you go that you don't run into the risk of censorship from inside or out?

The Internet as a whole and as it stands (even now) is as close as we will ever get to having a space that is 100% free. Your newsgroup getting too picky for your tastes, find another one. Youtube getting too friendly with Content ID bullshit, find another. No matter where you start there is always somewhere else to go (even if you have to make it yourself). The problem is that no matter where you go, it can still become just as censored. The threat doesn't have to come from legal threats, or even outside. The article itself points out how Twitter is up it's own ass about one specific video.

Given what I know about Usenet and what I know I don't know, I wouldn't be surprised if it's far more censored that we even realize.
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Raging Alcoholic, 22 Aug 2014 @ 11:24am

The Constitution protects us against the American government and only in America. Constitutional guarantees do not protect us against our neighbors and they certainly do not protect us against foreign governments operating in their own jurisdictions.
With Facebook poo poo ing criticisms of its founder wouldn't the aggrieved party do better to make a claim under anti-discrimination rules.

I don't want any government forcing my business to do something just because some other citizen thinks I should. They can certainly throw up an anti-keystone pipeline site of their own.
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rapnel, 22 Aug 2014 @ 11:33am

Re: Re: Re:
I agree with what her point was based in. There's a sound foundation of broken trust and ill conceived deeds that have been done in the name of a "free people" (and I'm a rather highly irritated person because of it). I was attempting to separate the people, as representatives of that particular amendment, from the Rights (of all peoples). Each part, US law or not, of the First Amendment, as written, firmly supports the first sentence of the Declaration which can and should apply to any concept of "Public Internet". To wit, a network of the people, by the people and for the people in pursuit of life, liberty and happiness.

I would prefer that everyone can read what they want, say what they want and see what they want. Internet Liberty. (with no uncertain amount of the modern aspects of copyrights be damned)
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Ninja (profile), 22 Aug 2014 @ 11:46am

Re: Re: Re: Re: Re:
Thanks for the extra info.
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Michael, 22 Aug 2014 @ 11:52am

Re:
Why doesn't Mark Zuckerberg just grow a big black mustache and twirl it while he's at it?

It grows in all patchy when he tries.
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Rich Kulawiec, 22 Aug 2014 @ 11:54am

Re: Re: Re: Re:
Newsgroups are not like (web) sites. Usenet is built on a completely different paradigm, and one of the fundamental principles of that is that each node has full autonomy over what it will accept, what it will store, and what it will send. That includes how that node deals with moderated newsgroups, by the way: moderation is enabled only by group consensus, which can be withdrawn at any time by one or a thousand nodes.

Nodes also have complete autonomy over which other nodes they interact with. This makes it very easy to route around censorship, attempted or implemented. (Incidentally, nodes can also route traffic via SMTP, which has its uses, e.g., bidirectional gateways, email tunnels, etc.)

There's more (a lot more) but the bottom line is that since Usenet is run by nobody and everybody, it's highly resistant to the kinds of attacks (technical, administrative, legal, etc.) that routinely succeed against other technologies.
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Anonymous Coward, 22 Aug 2014 @ 11:55am

Re: Decentralize
Amen. Peer to peer alternatives are the only way. They're not perfect but they're as good as we're ever going to get.
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Anonymous Coward, 22 Aug 2014 @ 12:02pm

Re: Re: The Law
"Directors must act in the best interests of the corporation and its members or stockholders."

http://business-law.lawyers.com/small-business-law/fiduciary-responsibilities-corporat ions.html
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Anonymous Coward, 22 Aug 2014 @ 12:08pm

Re: Re:
He said "compelled" not "required". Since a company residing in the US is required to follow US laws, they are required to remove some content. Malicious software, copyright infringing content, hate speech, that kind of thing. The easiest way to get around any end user problems over that is to have them in the terms of use.
I don't see how that would require or compel sites to post terms of use. If someone posts something the site doesn't want to host, they can remove it. What do legal agreements have to do with it?

Sites generally aren't liable for stuff posted by users (DMCA safe harbor doesn't exist outside the US but I'm not seeing a parade of horrible lawsuits against non-US sites—except with English libel law, and user agreements haven't helped anyone there). Is there an example of a site that has actually been hurt by not having terms of use? Everyone wants their users to imdemnify them, but when has any site actually made a user do that? And why would a court not blame the responsible user, even without any agreement?
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Anonymous Coward, 22 Aug 2014 @ 12:26pm

As we saw, for example, with Wikileaks, when there's strong pressure to silence a site, the downstream providers can get antsy and pull the plug. Upstream hosting firms, data centers and bandwidth providers can all be pressured or even threatened legally, and usually someone somewhere along the line will cave to such threats.
Also payment processors. When the US government decided it rather disliked Wikileaks, the likes of Visa and MasterCard suddenly became allergic to whistleblowing and stopped donations from getting through.
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John Fenderson (profile), 22 Aug 2014 @ 1:05pm

Re: Re: Re: Re:
"The Internet as a whole and as it stands (even now) is as close as we will ever get to having a space that is 100% free."

I'd argue that Usenet (and Fidonet, for that matter) is closer to this than the internet is.
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TestPilotDummy, 22 Aug 2014 @ 1:07pm

It CAN NOT be built until...
It CAN NOT be built until...

I have the right to tear up the street (by pick/shovel/machine) and lay some fiber or copper, or hang my wireless crap on antenna's all over like the telco does.

Wireless appears to be the NEAREST way, yet do we really trust the POTUS brown-nosed FCC about wireless radiation.

FCC has not managed the public spectrum so well, except for the commercial broadcasters sucking up most the spectrum.
The FCC ditched their original mission statement, now a cheap mobile phone is your "1st amendment"
The FCC rolls out a mission creep campaign to control the web, which is a clusterF of epic proportions--they need to stick their engineers to POWER and FREQUENCY in the PUBLIC INTEREST. But with denial and propaganda how long till people learn the truth about MICROWAVE radiation? I bet most people still cook with a microwave oven. It's INSANE! stop it. I ain't saying you can't have a mobile phone I am saying the way it's being gone about is FASCIST directives instead of being in the PUBLIC interest. Talking about HEALTH and HEALTH CARE and obamacare ignores EM radiation, ignores dangerous GMO, embraces DSM-5 (False Science), Floride in water, and yet the worst is in my opinion is "EAT YOUR HEALTHY GRAINS!!" when you should be eating wheat at all!
If it's CONTROLLED by the FCC, then it can be destroyed by them in the name of corporate profits.

I think I missed a point in there, but I frankly tired of harping this over and over and over and over and over
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John Fenderson (profile), 22 Aug 2014 @ 1:13pm

Re: Re: Re:
"I don't see how that would require or compel sites to post terms of use."

Because the sites want to cover their ass against users potentially suing them. Also, it's considered bet practice now in part because it makes more transparent to users what the site is doing.
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Nicci Stevens (profile), 22 Aug 2014 @ 1:26pm

Uh ...
The first amendment is: "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; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances"

On its face, it simply says that Congress shall not limit speech. While we could apply that spirit at least in some drawn out theory, we could not apply it to the letter. There is a large body of case law and opinions that effectively explain this further however that's not in the actual amendment.

Over the last several decades up until this very minute we are looking at situations where the ability to assemble and ask for redress is being limited or even stretched beyond belief. The idea that we (USA) should throw this out there and say "This is our law and others should follow it" seems hypocritical and perhaps even apocryphal. We (as do other countries) use weapons on our own people prohibited to be used in warfare while at the same waggling our fingers about human rights violations in other places.

As someone who has moderated sites I can tell you that the first amendment comes up a lot as someone is told they cannot discuss off-topic, distasteful or even illegal things, but, these have all been private enterprises. Analogous, I cannot stand in your living room preaching the good word of the Flying Spaghetti Monster without your consent any more than someone else can come to mine and tell me the good news of the great prophet Zarqon.

It is difficult, these days, to find older laws, procedures and intents to catch up with current, future and certainly global technologies.

Everyone censors, and they always will. Facebook, Twitter, Google (and all their parts), Yahoo, MSN, etc are important tools to discuss ideas, raise concern, and even harbor and communicate dissent, but, like any other tool, it is not the only one in the bag. Facebook, Twitter, Google, etc. all have their agendas and we hope they match ours but they really don't answer to us, they answer to their shareholders.

As I tell others, with respect to news, never rely on one source of news to get anything that resembles the full picture. Fox, CNN, MSNBC, Al Jazeera all have their own slant, though the latter tends to be less biased. As such when you want your voice heard and to heard the voices of others use many tools and avenues and not be held to one entity's idea of what's "appropriate".
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J, 22 Aug 2014 @ 1:32pm

Re: Re: Re: Re:
You can choose whether to post on a moderated or an unmoderated usenet group. It is far less censored than you realize, and attempts at censorship can be detected and routed around.
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Lisa Westveld (profile), 22 Aug 2014 @ 1:54pm

Re: Re:
Problem with the First Amendment is that it should discourage censorship, yet there are many ways that lawmakers and companies manage to get around this.
The freedom of religion, for example, is laughable considering that many non-Christians in the USA seem to have less freedom since some morons explain it as "Freedom in choosing as how to worship the Christian God". It's also complicated when people who worship a Spaghetti-monster as their god have trouble to get a public image of their religion in a public area without being ridiculed. Or how many oats in the USA contain references to the Christian God or other religious references. For example, the oath of citizenship ens with "so help me God" which is such a huge insult for those who don't believe in one. Or who have a different religious view.

But we're talking about free speech, not free religion. I wonder if communists noticed much of this freedom about 50 years ago. Or the Native American People when they start mentioning what happened to their ancestors. Or even the protesters in Ferguson at this moment!
You can even wonder if America really has a free press, considering that many of them seem to support the current government and they tend to stay away from certain sensitive topics, to prevent them from becoming public knowledge.
What's the value of freedom anyways if your choices of expression are still limited? Some people might have some very interesting news stories to tell but no one can hear it because the major newspapers are unwilling to report it. Or worse, they twist around the whole story.
Don't be fooled! Even in the USA you don't have complete freedom of speech. There are certain topics people don't really want to consider. For example, legalizing Gay marriages or certain drugs tends to be so sensitive that certain media will not allow it within their systems. The same with discussions about pornography, legalizing prostitution or even having comments on the US laws. All those things are often frowned upon and often banned from most media, which limits people in their freedom to make a public discussion about those topics.
This freedom is just relative. For a true Freedom of Speech, the Internet would have to allow those topics just as much as generic topics about flower arrangements or cars. The USA still has a few limits on this, not by law but by those people in Power who control what can and cannot be the next news item...
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Lisa Westveld (profile), 22 Aug 2014 @ 1:59pm

Re: Re:
Actually, the Internet has no borders. The companies might be located in the USA but its customers are all over the World. And the bigger companies are actually located in multiple areas.
It is ridiculous for e.g. Facebook to close discussions about Cannabis between Dutch citizens because drugs happen to be illegal in the USA. Frack that! It is legal in the Netherlands so we have the right to talk about it and it should just stay online!
Which adds the complication of multiple laws deciding what is and what isn't legal to talk about. For the Internet, there should be just one law, and that should NOT be the First Amendment. It should look like it, but has to be much more open to really Free speech.
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Anonymous Coward, 22 Aug 2014 @ 2:16pm

Re: Re: Re: Re:
Because the sites want to cover their ass against users potentially suing them.
Suing for what? And it is really better than a simple sentence like "we reserve the right to delete things" that users could actually understand?

People will be sued with or without agreements, but courts are generally good at getting rid of the really frivolous suits quickly. We shouldn't be assuming complex legal agreements will help with this in the absence of any evidence. I know lawyers are risk-averse and want documents to cover every possible thing that might happen, but their clients need to push back against them.

Also, it's considered bet practice now in part because it makes more transparent to users what the site is doing.
Seriously? The terms of service make things transparent? Only to people who have passed a bar exam, I suspect. There's plenty of evidence to suggest users don't even try to read these things (e.g., one EULA offered a cash prize to the first person to contact the company, and it went unclaimed for quite a long time).
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Lawrence D’Oliveiro, 22 Aug 2014 @ 5:27pm

Re: moderated or an unmoderated usenet group
Even USENET moderation is easy to bypass—it’s just a header flag, I believe.
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Lawrence D’Oliveiro, 22 Aug 2014 @ 5:29pm

Re: Usenet comes awfully close
Another vote for USENET here. Though it’s fallen out of fashion somewhat—my ISP shut off its USENET feed some years ago, and I haven’t bothered to subscribe to a paid feed. But it is certainly a decentralized service that is essentially impossible to censor.
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Anonymous Coward, 22 Aug 2014 @ 6:08pm

Re: Re: Re: Re: Re:
Usenet is in some ways a precursor to systems like Freenet, but it does have the disadvantage of requiring users to trust their server, whereas Freenet provides plausible deniability. (OTOH, Freenet has UI issues, and a rather poor selection of content.)
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Anonymous Coward, 22 Aug 2014 @ 6:11pm

Re: Re: moderated or an unmoderated usenet group
Yes, although most newsservers won't accept messages with obviously forged Approved headers (the scary devil monastery has a work-around for that of allowing everyone to be a moderator, but that's because it uses moderation as a retard filter rather than for content-control).
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Anonymous Coward, 22 Aug 2014 @ 6:20pm

Re: Re: The Law
Not sure about the USA, but Australia requires federally-registered for-profit corporations[1] to turn a profit in, IIRC, 3 years or be disincorporated. The point is to prevent some of the more blatant dodgy accounting tricks.

[1] Federal corporations power trumps state corporations power where there is any overlap, so state-registered corporations are pretty much only incorporated associations, state-based quangos, and statutory corporation-like things.
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Anonymous Coward, 22 Aug 2014 @ 6:24pm

Re: Re: The Law
The board can decide how best to act in there interests of the shareholders, provided they reasonably believe they are acting in the interests of the shareholders, and if the shareholders disagree they can vote to remove them or, if their actions are unreasonable, sue them. Privately-held companies have more freedom about how they interpret the interests of their shareholders, so they can include acting in accordance with some set of moral principles, or providing indirect benefits (especially things like municipally-owned corporations).
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Anonymous Coward, 22 Aug 2014 @ 6:43pm

Re:
ISTR that some of the Germanic and Scandinavian nations in Europe has a law which says that financial institutions must deal on an equitable basis with all legally-registered domestic corporations and residents - they can refuse to make a translation if they reasonably believe it to be fraudulent or illegal (but then must take steps to verify the transaction ASAP), but cannot refuse to do business with some class of business.

For example, there was a case in, IIRC, Denmark which ruled that Visa couldn't refuse to do business with sex shops, and just recently one in Germany which found that MasterCard Europe couldn't refuse to do business with a company selling imported Cuban cigars (a problem because MasterCard Europe is owned by the US MasterCard, and that company isn't allowed to own a company processing transactions for a company dealing in Cuban goods).
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Anonymous Coward, 22 Aug 2014 @ 6:48pm

Re: It CAN NOT be built until...
But with denial and propaganda how long till people learn the truth about MICROWAVE radiation? I bet most people still cook with a microwave oven. It's INSANE! stop it.

Do you know enough high-school physics to understand how a microwave heats food? (Hell, it could even be middle-school, I can't remember.)

The frequencies which are dangerous are more or less useless for mobile telephony (or any other message transmission) precisely because they are absorbed by things like people, fog, trees, etc., etc..

In any case, the power levels of a mobile phone are far too low to be dangerous, and have to be because otherwise you'd have serious issues with battery capacity.
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Whatever (profile), 22 Aug 2014 @ 11:32pm

Chuckling...
I had to read the story through twice to make sure that there wasn't a disclaimer that turned this into a story from TheOnion. No facebook style satire mark, so I have to assume you are serious - or drunk.

There is no such thing on the internet as a pure open commons. There is no actual public park or street corners, no purely absolutely public spaces. Everywhere you go online is owned by someone, some company, or some group, and like it or not, is subject to their rules and their whims.

Need I point out that Techdirt has both a report button and the ability to automatically block posts from flagged posters or that have certain potentially spammy things in them? Should you not lead from example?

I could go on for ages. I have to say that this post should be marked as Techdirt classic, as it truly shows a disconnect from reality that cannot easily be explained otherwise.
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Anonymous Coward, 23 Aug 2014 @ 1:11am

Re:
Applying the "First Amendment" on the Internet would be worse...Besides, the Internet is asking for new, International laws.
People seem to be trying to figure out what can and can't be said on the internet, and who gets to impose these rules on national and global communities. The First Amendment is not a law that determines what speech can be proscribed: its purpose is to create as strong a barrier as it can to those who want to limit speech. It is a purely defensive measure that guards against the censorship that one person or group may try to impose on another.

And frankly, the internet isn't asking for new laws any more than it asked for current ones.
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Anonymous Coward, 23 Aug 2014 @ 1:19am

Re: Re: Re: The Law
Not sure about the USA, but Australia requires federally-registered for-profit corporations[1] to turn a profit in, IIRC, 3 years or be disincorporated.
Weird. In the US, this would be considered murdering a child.
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Nicci Stevens (profile), 23 Aug 2014 @ 5:52am

Re: Re: Re:
Actually cannabis is not legal in the Netherlands but is allowed. It is legal in Uruquay though. Quasi legal in US States of Washington and Colorado.
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art guerrilla (profile), 23 Aug 2014 @ 5:56am

Re:
(parasitizing on your post)
um, the answer is, 'no, you can not have an inertnet where 1st amendment concerns are paramount...

all this 1984 shit isn't for play...
as chickenshit as sheeple are, and as long as there is bread and circuses, the iron fist will stay in the velvet glove...

...but there will be an iron fist
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John Fenderson (profile), 23 Aug 2014 @ 8:58am

Re: Re: Re: The Law
In the US, the revenue service has a test to determine if you're a business or a hobby. There's a number of factors, but one of them is that they want you to show a profit in three years out of five. That's a different thing, though. You don't have to maximize your profit, you only have to be in the black.
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Anonymous Coward, 24 Aug 2014 @ 6:45pm

There is no such thing on the internet as a pure open commons. There is no actual public park or street corners, no purely absolutely public spaces. Everywhere you go online is owned by someone, some company, or some group, and like it or not, is subject to their rules and their whims.

Actually, in English property law there can be privately owned property which is in whole or in part open to common usage irrespective of the wishes of the owner.

In any case, the common space can be provided by the government, or by some community trust (for example, the Freenet user base could have some kind of protected commons status).
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Whatever (profile), 24 Aug 2014 @ 6:52pm

Re:
Even those examples won't work out. The government space will still not tolerate illegal materials, and freenet would have the same issue.

How can I be so confident? You only have to ask yourself the standard child pr0n question - if those sites or common areas were full of that material, do you think that they would tolerate it? The answer would be no. They also would be unable to withstand DMCA notices and other legal actions.

It really seems that what people are trying for here is a space where law does not apply. That's just not going to happen. Yes, you can .onion and darknet yourself into thinking you are free, but at the end of the day, if the public can find it, so can the authorities.
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Anonymous Coward, 24 Aug 2014 @ 11:03pm

Re: Re:
Even if governments were as authoritarian as you seem to like, they would still fail to prevent people saying what they want to other people. The old USSR could not stop people copying and circulating books and other writings that they banned, so preventing the likes of Usenet circulation information is a forlorn hope.
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John Fenderson (profile), 25 Aug 2014 @ 8:43am

Re: Re:
"It really seems that what people are trying for here is a space where law does not apply"

That's not it at all. What people are trying for is a way to interact without being spied on or censored.
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Anonymous Coward, 25 Aug 2014 @ 12:16pm

Sure, great idea.
Until someone start talking about things that arent politically correct.
There is only one site that doesnt remove these comments, and it is widely hated by most of the internet.
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John Fenderson (profile), 25 Aug 2014 @ 3:41pm

Re:
"There is only one site that doesnt remove these comments"

There are a LOT of sites that don't remove these comments. Most of them are not hated.
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Anonymous Coward, 1 Sep 2014 @ 8:18pm

Re: Chuckling...
I will note, because you seem to be a smart fellow who just decided to post something without thinking about it, that comments that are 'reported' are not blocked. You can still access them. So, not the same thing. Also, blocking spam is not the same as blocking political speech. If you want to place an ad on TechDirt's space, then get a contract with Mike and pay for it.
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