Content Moderation Case Study: Using Copyright To Take Down A Transformative Criticism Video (2019)

from the copyright-as-censorship dept

Summary: In the fall of 2019, talk show host Ellen Degeneres was criticized after being seen attending a professional football game with former President George W. Bush. Degeneres addressed the controversy on her show, saying she was invited by the Dallas Cowboys’ owner, and also suggesting that she was friends with the former President Bush and that people should “be kind” to people they disagree with politically.

Rafael Shimunov took the video of Degeneres giving her side of the controversy and transformed it so that the background showed disturbing images from the Iraq War which was started by President Bush. The clip used approximately half of the video that Ellen herself had posted to YouTube, with the only change being the replacement of the blue background. Soon after that video began to go viral on Twitter, Shimunov and others who had reposted it received notices saying that the video was taken down due to a copyright claim under the DMCA made by someone working for Degeneres’ TV show.

Recipients of the takedown notice said that it appeared to be the work of a social media manager for the show and not an automated takedown.

As the EFF noted in discussing the takedown, the DMCA requires that anyone filing a DMCA takedown notice take into account whether or not the content in question is covered by fair use, and there is little evidence the social media manager filing these notices did so.

Decisions to be made by Twitter:

• Is changing the background in the video transformative enough to make it fair use?
• Should you consider that the images act as commentary on the content of the video?
• How should Twitter deal with copyright holders who ignore fair use in issuing DMCA takedowns of videos?
• Should Twitter re-enable such videos following public controversy?

Questions and policy implications to consider:

• Should social media companies be responsible for judging if content subject to a takedown is covered by fair use?
• Are the current rules regarding fair use and filing false takedown notices clear enough to stop such filings?
• How should the law handle takedowns over content that is fair use?

Resolution: The story of the takedown got widespread press attention and Rafael Shimunov even put up an online petition asking Twitter to put the video back up. However, over a year later, at the time of writing this story, that video remains removed on Rafael’s own Twitter feed, though it has been put back on others.

Originally posted on the Trust & Safety Foundation website.

Filed Under: censorship, content moderation, copyright, criticism, ellen degeneres, george bush, transformative use
Companies: twitter

FTC's Misses Opportunity To Understand Social Media; Instead Goes For Weird Fishing Expedition Against Odd Grouping Of Companies

from the this-could-have-been-helpful dept

On Monday, the FTC announced that it was issuing what's known as 6(b) orders to nine social media and video streaming companies, demanding a fairly massive amount of information regarding their data collection and usage policies, as well as their advertising practices. To me, this is a huge missed opportunity. If the FTC is truly trying to gain a better understanding of data collection, privacy, and advertising practices, perhaps to better inform Congress on how to, say, pass a truly comprehensive (and useful?!?) privacy legislation, then there are ways to do that. But this... is not that. This looks like a weird fishing expedition for a ton of unrelated information, from an odd selection of nine companies, many of whom are in a very different business than the others. It leaves me quite perplexed.

First, let's look at the odd selection of companies. The letters are going to:

• Amazon (apparently including Twitch)
• Bytedance (TikTok)
• Discord
• Facebook
• Reddit
• Snap
• Twitter
• WhatsApp (owned by Facebook)
• YouTube

Okay, so they've definitely focused on many of the big players, but they've also left out a ton as well. Where's LinkedIn? Or Github? Or WeChat? Or Pinterest? Or Quora? They list Facebook and Whatsapp... but not Instagram? Where's Zoom? Now it's true that sometimes the FTC will randomly sample a bunch of companies in a particular industry to get a look at certain practices -- but for that to make sense, you want to sample from a set of similarly situated companies. This is... not that.

For the smaller companies on the list, such as Reddit and Discord, the FTC demanding they file a ton of paperwork in a very short time frame is going to mean a tremendous waste of time.

The second concern is the broad nature of the requests. The "sample order" is massive. There are 53 separate requests, many with multiple sub-parts. They're not just asking for specific information, but rather going on what appears to be an incredibly broad fishing expedition for information about a wide variety of practices at all of these companies -- including broad demands for future strategies and plans. For example, beyond just information on the number of users, it demands all documents relating to "business strategies or plans," "research and development efforts," "strategies or plans to reduce costs, improve products or services..." It also seems to be demanding all "presentations to management committees, executive committees, and boards of directors."

That feels like a fishing expedition, rather than an attempt to actually understand data collection and usage practices.

There are categories of information included here that I think it would be useful for the FTC to understand. But there's just so much information requested that it seems likely to bury the useful information.

The one FTC Commissioner who dissented from this effort, Noah Joshua Phillips, raises important questions in his dissent:

Effective 6(b) orders look carefully at business practices in which companies engage in a manner designed to elicit information, understand it, and then present it to the public in way that is usable and can form a basis for sound public policy.

The first step is to select a group of recipients that will permit such examination, usually a group of firms engaged in conduct that can be compared. But the logic behind the choice of recipients here is not clear at all. The 6(b) orders target nine entities: Facebook, WhatsApp, Snap, Twitter, YouTube, ByteDance, Twitch, Reddit, and Discord. These are different companies, some of which have strikingly different business models. And the orders omit other companies engaged in business practices similar to recipients, for example, Apple, Gab, GroupMe, LinkedIn, Parler, Rumble, and Tumblr, not to mention other firms the data practices of which have drawn significant government concern, like WeChat. The only plausible benefit to drawing the lines the Commission has is targeting a number of high profile companies and, by limiting the number to nine, avoiding the review process required under the Paperwork Reduction Act, which is not triggered if fewer than ten entities are subject to requests.

Phillips calls out the same broad demands I raised above regarding business plans, R&D and presentations, noting:

Such a request would be suited to an antitrust investigation. But as part of an inquiry ostensibly aimed at consumer privacy practices, it amounts to invasive government overreach. And that is just one of the order’s 50-plus specifications.

And, finally, he highlights how this effort is just demanding way too much information to be of use for a comprehensive policy recommendation:

The biggest problem is that today’s 6(b) orders simply cover too many topics to make them likely to result in the production of comparable, usable information—yet another feature proper oversight and public comment could have flagged. Rather than a carefully calibrated set of specifications designed to elicit information that the agency could digest and analyze as a basis for informing itself, Congress, stakeholders, and the public, these 6(b) orders instead are sprawling and scattershot. Their over 50 specifications, most with numerous and detailed subparts, address topics including, but not limited to: advertising (reach, revenue, costs, and number and type); consumer data (collection, use, storage, disclosure, and deletion); as noted above, all strategic, financial, and research plans; algorithms and data analytics; user engagement and content moderation; demographic information; relationships with other services; and children and teens (policies, practices, and procedures).

Recipients of 6(b) orders typically negotiate to limit their productions, to tailor them in light of their specific business models and business practices. Perhaps the Commission will push back on attempts to do so, devoting additional lawyers to litigating the orders and having a federal judge oversee them, rather than OIRA. Or negotiation may reduce the burdens. But if that happens, each recipient will be responding to a different set of negotiated specifications. That certain of the companies in question have very different business models makes this even more likely. The end result of that is, say, the agency learning a lot about one recipient’s advertising practices, but not as much about its algorithms. For another recipient, the agency might receive information about privacy practices but very little about its plans to expand. Each of the nine recipients will produce differing, if any, amounts of information to each of the 50-plus specifications.

I actually think it would be a good thing for the FTC to better understand how these companies work and their practices. I think it could be useful for them to gain such an understanding, and then make recommendations on a comprehensive federal privacy law. But I don't see how this fishing expedition does any of that. Instead, it just asks for basically everything and the kitchen sink from a somewhat random selection of companies, some of whom will have difficulty producing all of this information.

Filed Under: data, data collection, data protection, fishing expedition, ftc, privacy, social media, video streaming
Companies: amazon, bytedance, discord, facebook, reddit, snap, tiktok, twitch, twitter, whatsapp, youtube

Senator Tillis Is Mad That Twitter Won't Testify About Copyright Infringement; Since When Is Twitter A Piracy Problem?

from the weird-all-around dept

After writing about the MPA/RIAA's ever-shifting targets of who to freak out about regarding copyright infringement, it helps to take each new target with a grain of salt. They were mad about Napster, then LimeWire, then YouTube, then cyberlockers/cloud storage. And now, apparently the target is... random social media sites? There's been plenty of attention recently over the RIAA turning its attention to... background music in Twitch streams. But who the hell thinks that Twitter is some den of piracy? Apparently, the recording industry does.

Senator Thom Tillis, who is leading a new effort to completely overhaul copyright law is apparently angry that Twitter chose not to send someone to a hearing he's holding in mid-December.

The letter that Tillis sent to Twitter in response to this decision is way over the top. Unless subpoenaed, appearing before Congress is very much voluntary. People and companies refuse to appear all the time. And even if there was a subpoena, it seems worth noting that it's Tillis' party that has decided that ignoring Congressional subpoenas is just fine and dandy.

But, really, the bigger issue here is why is Twitter even a target at all? No one thinks about Twitter as a source for copyright infringing materials. And Twitter has always been known to be responsive to DMCA takedowns. They have a whole section in their transparency report about copyright takedown notices. That certainly shows that Twitter is very responsive to DMCA notices. It does highlight how it has refused to comply with some notices, but those are in cases where it's clearly abuse of the DMCA for censorship, such as when a bunch of DMCA notices were sent to try to silence critics of the Ecuadorian government.

In fact, if anything, we've often seen Twitter be too responsive to questionable DMCA takedown notices, like the time it pulled down a Trump campaign video (remember, Tillis is a big Trump supporter) over a highly questionable copyright claim.

And yet, here's Tillis trying to make it sound like Twitter is a den of piracy that ignores copyright takedowns.

But Twitter has been less engaged in working with copyright owners on voluntary measures and technological tools, and now has rebuffed my request to testify. The only reasonable conclusion one can draw from your actions is that Twitter simply does not take copyright piracy seriously.

Or, maybe, the nature of Twitter (mostly short bursts of text) is not at all conducive to some RIAA supported show trial about piracy. But it's really in the detailed questions in which Tillis gives away the game. The RIAA wants to force every website that hosts 3rd party content to have to buy a sitewide license. This is what Article 17 was all about in the EU, and Tillis more or less admits it with this question:

I have heard that Twitter has been slow to respond to copyright infringement on its platform and also refused to negotiate licenses or business agreements with music publishers or record labels. In contrast, other major-social media companies have done the right thing and mitigated infringing activity on their platfoms by entering into negotiated license agreements to allow uses of music. Does Twitter seek licenses for the use of music? If so, in what instances? Has Twitter made efforts to negotiate license agreements with music publishers and record labels to ensure songwriters- and artists are compensated?

No one is going to Twitter as a way to get music. If music appears in video snippets on Twitter it's almost entirely incidental. And Twitter has shown that it's absolutely responsive to DMCA notices (see the Trump campaign ad takedown mentioned above). This is entirely about the RIAA trying to get the US government to force every website to just write them a big check every year.

Despite the tremendous value that music brings to Twitter’s business, your platform continues to host and permit rampant infringement of music files on its platform

What? No. That's literally not happening, and music is not providing any significant value to Twitter's business.

Twitter has not taken meaningful steps to address the scale of the problem.

It clearly has taken steps and is incredibly responsive to DMCA notices (sometimes too responsive).

Instead, your company claims that it already goes above and beyond what the law requires. What steps has Twitter taken to ensure no unlicensed music is made available?

This is such a dumb question. It is literally impossible to "ensure no unlicensed music is made available." Of course some will always be because of the broken nature of today's copyright law, nearly everything anyone does involves some form of copying content without a license. In fact, many unlicensed uses of music are legal because of things like fair use or de minimis use. Demanding "no unlicensed music" is not only impossible, it literally is not required by law.

How many takedown notices has Twitter received each year since it launched in 2006?

This is a really bad question as well. This was the key tactic the labels have used against Google/YouTube, using the number of notices received as a proxy for how bad the sites are. But this is a number the labels have control over since they get to send the notices.

There are more questions, but the whole thing is clearly driven by the RIAA's interests to force Twitter into just writing them a giant check every year. I mean, I guess it worked against YouTube and Facebook (where at least there was some argument to be made that music was a bigger deal), so now they've moved on to other sites like Twitch and Twitter. But forcing every website to sign a license is crazy, not required by law, and acting as if the failure to sign a license is some indictment of how Twitter feels about copyright is complete nonsense.

Filed Under: congress, copyright, testimony, thom tillis
Companies: twitter

Just As #DiaperDon Starts Trending, Trump Claims That Twitter Uses 'Fake' Trends, Calls For 'Termination' Of Section 230

from the for-national-security? dept

It's no secret that Donald Trump doesn't like Section 230. Wait. Actually, let's back up and try that again: it's no secret that Donald Trump doesn't like what he thinks Section 230 is about, which has little-to-no-resemblance to what Section 230 is actually about. However, over the long weekend, things took an even more ridiculous turn than usual. It started on Thanksgiving when the President was signing some legislation and taking some questions from the press. For unclear reasons, the setup where he had to sign things was with a very small desk affixed with the Presidential seal. While this desk has been used before for such things -- and Trump has even joked about the size of it, the framing of the shot -- the lack of people around him, the wide frame of the shot, the tread over carpet, and just... everything really made it look like the President was sitting at an elementary school desk.

The internet started to have some fun. Actually, lots of fun.

It was not long until #DiaperDonald started trending on Twitter.

And, then, it was not much longer beforel the Commander-in-Chief of the military, and the leader of the United Stated of America decided to throw a tantrum on Twitter and claim that Twitter made up its trending topics (it does not).

That's the supposed leader of the free world saying:

Twitter is sending out totally false "Trends" that have absolutely nothing to do with what is really trending in the world. They make it up, and only negative "stuff". Same thing will happen to Twitter as is happening to @FoxNews daytime. Also, big Conservative discrimination!

All of that is, of course, nonsense, but it was followed up just five minutes later with:

That's him saying:

For purposes of National Security, Section 230 must be immediately terminated!!!

The fact that this comes so close to the tweet whining about #DiaperDon trending suggests that this has literally nothing to do with "national security." If Trump has learned one thing while he's in office, it's that one way that the President can actually get stuff done (such as start trade wars) without the need to get Congress's approval is to claim "national security" to make it happen. But you can't just get rid of laws that way. That's not how any of this works. At all.

Also, um, if Section 230 was terminated, it wouldn't change the fact that Twitter might show trending topics that are critical of the President. Because that's protected by the 1st Amendment. You know... part of the Constitution that the President swore to protect and uphold when he was sworn into office?

Of course, if 230 were terminated, meaning that Twitter (and others) might face more annoying and costly lawsuits for the actions of its users, one thing it might be a lot more prone to do is to delete the account of troublemakers spewing conspiracy theories and nonsense on its platform. Such as the soon-to-be-leaving President Donald Trump.

Filed Under: diaper don, donald trump, intermediary liability, national security, section 230, temper tantrum, trending, trends
Companies: twitter

Will Parler Users Treat Its 'Glitch' That Hid Georgia Election Content The Same Way They Treated A Twitter Glitch?

from the hypocrites dept

It's been absolutely fascinating -- though not at all surprising -- to watch a ton of Trumpists mentally struggling with the process of understanding the nature, importance, and necessity of content moderation online over the last few months via Parler. As you may recall, after whining about being moderated on sites like Twitter and Facebook, a bunch of Trump fans started using Parler, a site that was only recently revealed to have been cofounded by Rebekah Mercer (Parler fans like to claim that their users are migrating from Twitter to Parler, but most of them are still using Twitter, because Parler is mostly them preaching to the converted).

Parler's founders (including Mercer) and its biggest fans have been insisting that Parler stands for "free speech" and that unlike Twitter, it won't moderate content. Indeed, despite claiming that it would only moderate "based off the FCC and the Supreme court" (whatever the fuck that means), we knew that the site would end up doing much more moderation, just like every other social media site.

In fact, we highlighted how Parler seemed to be doing a speedrun through the content moderation lessons of every previous social media network that comes on the scene, promising to do no moderation at all, and then quickly discovering that that's impossible. First, you have to moderate some content under law (such as child sexual abuse material). Second, there is plenty of content that you have strong legal reasons to moderate (such as copyright infringement, to avoid massive liability). Third, every site recognizes they need to deal with straight up spam. And lots of sites insist that they can just do that and nothing else. But then they discover that they have people on their platform trolling, harassing, and abusing others.

Last summer, we highlighted how Parler was banning trolls who were joining the platform just to make fun of Parler and its users. Hilariously, that post keeps getting comments every few days from Parler users saying things like "of course Parler has to ban you leftist trolls." Just a few examples from our comments. This guy says that he needs Parler as a sort of "safe space."

So, how does censorship feel to you? Parlor provides a place where people can escape the insults, bullying, Mental/emotional assaults. Try presenting a point of view without name calling, with facts and data, with an open mind and with a little thought toward strangers and how the vitriolic hates speech affects them. Then perhaps the lefties will be welcome.

This is pretty hilarious, given how frequently Trumpists mock others for wanting "safe spaces" and insisting that "hate speech" is not a thing. And then there's this one from someone who thinks its obvious that the users trolling Parler should get banned:

Every last one of those crybabies up there just self-explained why they were banned. Lol "I created an account just to mess with conservatives." Yeah dude, I can see why you were banned. If you create an account just to screw with people, you're a troll and you SHOULD be banned regardless of the web site. If you create an account to debate and give general respect to everyone, then no, you're fine. The people above got exactly what they deserved. NO WEB SITE is going to allow harassment of any kind. Period.

Um. Yes, that was the very point of that post. That every site discovers it needs to deal with harassment. And that's a big part of the reason why people get kicked off of Twitter.

I find it hilarious that the same crew who insists that Twitter/Facebook are "censoring" them, immediately spins around and insists that it's totally obvious that Parler must remove "trolls, hate speech and harassment" without recognizing their own hypocrisy.

Anyway, sooner or later we were going to have a controversy in which Parler moderation impacted their Trumpist-style supporters, rather than just the folks jumping in to troll. And that day is today.

The Daily Beast has an article giving some of the important background. A SuperPAC connected to convicted political scammer Roger Stone is trying to get people to write in Trump's name in the two Georgia Senate runoff elections:

The most aggressive call to boycott or cast protest ballots in the two runoff races has, so far, come from a dormant pro-Trump super PAC with ties to Stone that unveiled a new initiative to retaliate against the Republican Party’s supposed turncoats by handing Democrats control of the U.S. Senate.

The group, dubbed the Committee for American Sovereignty, unveiled a new website encouraging Georgia Republicans to write in Trump’s name in both of the upcoming Senate runoff elections, which could determine the party that controls the upper chamber during President-elect Joe Biden’s first two years in office. The PAC argued that doing so will show support for the president in addition to forcing Republicans to address the wild election-fraud conspiracy theories floated by Trump supporters and members of his own legal team.

This entire campaign is somewhat bewildering, since (1) there is no way to write-in names during the run-offs and (2) it would seem to go against Trumpist interests to sink the support of the two Republican candidates. So it was somewhat amusing to suddenly find out that Parler is apparently blocking hashtags related to this campaign:

For what it's worth, Parler's recently hired policy executive says that the accusation may have been "a glitch" according to Newsweek. And I'd totally buy that is a possibility.

There seems to be no way to link directly to that Parler post, but it says:

This is false, as evidenced by the fact that this post showed up when I searched for the tag.

There may be a glitch, or a delay of some kind, because the initial screen summarizing the results showed “1 post,” and then when you click on that, you see a whole bunch.

Please people, don’t jump to conclusions. I know you’re accustomed to biased content curation, but we don’t do that here. Ask before jumping to conclusions.

However, I will note that when Twitter admitted that it had a glitch that filtered some people out of auto-complete and latest results in search, the same folks rushing to Parler now (such as Ted Cruz) insisted that it was obviously deliberate and to this day continue to falsely accuse Twitter of shadowbanning them. So it's pretty rich for Parler people to say "please people, don't jump to conclusions." The only reason Parler has any audience at all is because its insanely gullible userbase jumped to a bunch of false conclusions about Twitter moderation.

Again, Parler has every right to moderate however it sees fit. And getting rid of trolls and assholes is a perfectly legitimate thing to do. Also, glitches happen all the time. However, I find it amusing that once again, Parler is learning all the same lessons that Twitter learned over time -- and Parler's users (and employees) are demanding we give Parler the benefit of the doubt they never gave Twitter. So before Parler's fervent supporters rush into our comments to defend Parler, let me be clear: Parler has every right to do this. No one is mocking them for that. We're mocking them for (1) insisting that Parler wouldn't do this and (2) for the fact that you give Parler the benefit of the doubt that you refuse to give Twitter.

Filed Under: content moderation, georgia elections, glitch, roger stone, section 230, social media
Companies: parler, twitter

Day After Senator Lindsey Graham Is Credibly Accused Of Trying To Undermine The Election, He Hosts Hearing Attacking Social Media For Undermining Election

from the this-is-all-so-dumb dept

The timing on this is quite incredible. On Monday, Georgia's (Republican) Secretary of State, Brad Raffensperger, spoke out, saying that Senator Lindsey Graham had called him and implied that Raffensperger should look to throw out ballots that were legally cast in the state. On Tuesday morning, in trying to defend his efforts to undermine the election, Graham tried to shake off his calls with Raffensperger as no big deal, saying that he also spoke to Arizona and Nevada election officials. This does not make things better. Indeed, it actually seems to make things worse (and that's even after Arizona's Secretary of State, Katie Hobbs, claimed that Graham's claims were "false" and she never spoke to him.

All of this certainly seems like cause for concern about election interference and tampering. Indeed, it's the kind of thing a good government would at least investigate. And, in a stroke of good timing, the Senate Judiciary Committee was all set up on Wednesday to host a hearing about the 2020 Election and "suppression." Except... this hearing was organized and chaired by the very same Senator Lindsey Graham, and was yet another dog and pony show of internet CEOs having to defend specific content moderation choices.

Now a sane person who loosely follows the news might be saying "wait, didn't we just do that last month?" And you'd be right. Just a few weeks ago, there was an almost identical hearing. Both hearings had Facebook CEO Mark Zuckerberg and Twitter CEO Jack Dorsey (the earlier hearing also had Google's Sundar Pichai). Both hearings featured a bunch of grandstanding and often clueless Senators demanding to know specific answers to why the websites did or did not moderate specific pieces of content.

But this time it was the Senate Judiciary Committee, as compared to the Senate Commerce Committee last time. There were a few overlapping guests -- including Senators Ted Cruz, Mike Lee, and Marsha Blackburn. This one also included Senator Josh Hawley who grandstands with the best of them over this issue. Cruz and Lee basically did a warmed over, half-baked rehash of their performances from a few weeks ago. Hawley's performance was particularly stupid. He claimed to have heard from a "whistleblower" inside Facebook and posted two grainy screenshots of internal Facebook tools. One was its "Tasks" tool, which is a general company-wide task manager tool, which Hawley used to imply that Facebook, Twitter and Google are some how colluding to figure out which users, hashtags, and content they're going to suppress.

This is not how any of this works. Hawley demanded that Zuckerberg turn over every mention of Google or Twitter in their Tasks tool, and Zuck quite reasonably pointed out that he couldn't commit to that without knowing what sort of sensitive information might be involved. This is basically the equivalent of Hawley asking for every email that mentions Twitter or Google. It's an insane and intrusive request, though he threatened to subpoena the company if Zuckerberg wouldn't comply. Hawley then demanded to know if any Facebook employees ever communicate with Twitter or Google.

Zuckerberg, again, quite reasonably, pointed out that he's sure that people who work in trust and safety at some point or another know of people in similar roles at other companies and he's sure at some point or another some of them communicate with each other, but that's quite different than plotting over what content to block as Hawley kept insisting. Hawley then trotted out another screenshot of some other internal tool that Zuckerberg says he didn't recognize and thus couldn't answer any questions about -- which Hawley again pretended to be some damning evasiveness from the CEO. What it actually suggested is that this is not a very important tool, and Hawley is clearly overstating what it's used for.

Oh, and Hawley, ridiculously, insisted on calling the trust and safety teams at these companies "censorship teams," and implying that they deliberately try to silence ideological content (they do not). Of course, what's truly crazy is that many of the half-dozen or so different Section 230 reform bills that Hawley has introduced in the Senate would actually require more content takedowns than we have today. But you can't be a demagoguing populist without demagoguing while the cameras are on, and Hawley played his part.

If you'd like to read my play-by-play response to the entire hearing as it happened, I have a very long Twitter thread:

Or if you're truly a glutton for punishment, you can watch the entire 4 hours and 43 minutes of the hearing but I do not recommend that for your own sanity:

Like other hearings involving the internet, this hearing was big on rhetoric, ignorance on the part of the senators and no clear urgent need for such a hearing right now. For the most part, you had Republican senators mad about choices to moderate certain content (or to make decisions too quickly that later turned out to be mistaken), while Democratic senators were mad about choices not to moderate other content (or to make decisions too slowly). In other words, they see this debate as a sort of tug o' war, with the companies as the rope, and their main hope is to influence content moderation to work the way they want it to work, if they could wave a magic wand and just enable the content that they and their supporters want.

We should see this entire thing as an affront to the 1st Amendment. Demanding changes (in either direction) to the content moderation practices of private websites is a massive 1st Amendment issue. Imagine if Democratic senators called in Fox News execs to complain about story choices? Or Republicans did the same with the NY Times. 1st Amendment and free press people would be reasonably up in arms over this gross abuse of power over something that the Constitution deliberately and clearly says Congress has no authority over.

So why do we let them do this to social media companies?

Much of the hearing was little more than moral panic claim after moral panic claim, highlighting the nature and problems of society itself -- and then pinning the blame on social media. It's the same moral panic we've seen play out over and over again for centuries. Some new medium comes about, and people use it. Some people use it for things that upset other people, and rather than look at the underlying causes, it's easier to blame the messenger.

It's as disappointing as it is predictable.

And chances are it's only going to continue. Towards the end of the hearing Senator Thom Tillis (and Senator Chris Coons) suggested that both Zuckerberg and Dorsey should commit to returning again next month. And Senator Richard Blumenthal even laughed mirthfully in closing out the hearing by saying he fully expected there to be many, many more hearings with these execs.

It's all for show. The senators want to be seen to be doing something and picking on these platforms is a welcome distraction from actual problems in society -- including a president who refuses to concede in the election he lost, the quarter of a million (and climbing) dead people from a botched COVID response (and the lack of any real effort to deal with COVID as it sweeps across the country again), and so many other things. Rather than facing actual problems facing society, Senator Lindsey Graham and his colleagues have decided that it's best to play "look! squirrel!" and insist that the biggest problem of today is that Twitter and Facebook want to fact check the president when he spews nonsense and dangerous conspiracy theories.

Filed Under: congress, content moderation, jack dorsey, josh hawley, lindsey graham, mark zuckerberg, marsha blackburn, section 230, senate judiciary committee, ted cruz
Companies: facebook, twitter

ICE Briefly Becomes A Stranded Minor: Loses Its Twitter Account For Being Too Young

from the yeah,-but-only-briefly dept

Yesterday afternoon the Twitter account of the US's Immigrations and Customs Enforcement (ICE) briefly disappeared from the internet. Was it... anti-conservative bias? Nope. Was it ICE doing more stupid shit in locking up children and separating them from their parents? Nope. Was it ICE's willingness to seize domain names with no evidence, claiming "counterfeit"? Nope. It was that ICE had changed the "birthday" on its account to make it so that its "age" was less than 13. Thanks to the ridiculousness of the Child Online Privacy Protection Act (COPPA), which has basically served only to have parents teach their kids it's okay to lie online in order to use any internet service, most websites say you can't use the service if you're under 13 years old. ICE changed its "birthdate" to be less than 13, thereby making it... shall we say, something of a "stranded minor" and Twitter automatically, well, "separated it" from its account.

Might be nice for ICE to get a sense of how that feels.

Of course, what this really highlights is the idiocy of COPPA and how nearly every website tries to deal with its requirements. As we noted, Twitter, like many internet sites outright bars kids under 13 to avoid COPPA's rules. Twitter does note in its forms that you need to put in your own date of birth, even if your account is "for your business, event, or even your cat."

But... that's bizarre. For accounts like this, whose birthday matters? Many such accounts are managed by multiple people. Whose birthday gets put in there? The answer is, of course, that a birthday is just made up. And, if you make it up, apparently you need to make up one that is older than 13 to avoid this COPPA-based "separation."

Anyway, ICE figured stuff out and made a little joke about it:

Frankly, I'd rather they focused on actually helping asylum seekers find protection in our country rather than tossing them out, and maybe put some of that effort into reuniting the 666 kids back to the families they've lost track of.

Filed Under: age restrictions, birthday, coppa, ice
Companies: twitter

Anti-Cheat Student Software Proctorio Issuing DMCA Takedowns Of Fair Use Critiques Over Its Code

from the fail dept

As we've discussed before, the COVID-19 pandemic has forced many educational institutions into remote learning and with it, remote test-taking. One of the issues in all of that is how to ensure students taking exams are doing so without cheating. Some institutions employ humans to watch students over video calls, to ensure they are not doing anything untoward. But many, many others are using software instead that is built to try to catch cheating by algorithmically spotting "clues" of cheating.

Proctorio is one of those anti-cheat platforms. The software has been the subject of some fairly intense criticism from students, many of whom allege both that the software seems to have trouble interpreting what darker-skinned students are doing on the screen and that it requires a ton of bandwidth, which many low-income students simply don't have access to. Erik Johnson, who is a student and security researcher, wanted to dig into Proctorio's workings. Given that it's a browser extension, he simply downloaded it and started digging through the readily available code. He then tweeted out his findings, along with links to Pastebin pages where he had shared the code he references in each tweet. Below are some of the tweets that you can reference for yourself.

It's important to note that these tweets are part of a regular string that Johnson has put out critiquing the way Proctorio functions. In other words, due to all the consternation over how Proctorio works among students, this is public criticism from a security researcher showing his work from source code that literally anyone can see if they download Proctorio. And, while you can see the tweets above currently, Proctorio initially had them taken down via DMCA takedown requests.

Those three tweets are no longer accessible on Twitter after Proctorio filed its takedown notices. The code shared on Pastebin is also no longer accessible, nor is a copy of the page available from the Internet Archive’s Wayback Machine, which said the web address had been “excluded.”

A spokesperson for Twitter told TechCrunch: “Per our copyright policy, we respond to valid copyright complaints sent to us by a copyright owner or their authorized representatives.”

Johnson provided TechCrunch a copy of the takedown notice sent by Twitter, which identified Proctorio’s marketing director John Devoy as the person who requested the takedown on behalf of Proctorio’s chief executive Mike Olsen, who is listed as the copyright owner.

When asked to comment at the time, Proctorio noted that just because anyone can see the code by downloading the software doesn't mean reproducing it is not a copyright violation. And that's true, although quite a stupid bit of copyright enforcement. What Proctorio didn't mention is that this sort of critique and use of copyrighted content in furtherance of that critique is precisely what Fair Use is meant to protect. That the company clearly did this as a method for getting some critical tweets taken down also went unmentioned.

“This is really a textbook example of fair use,” said EFF staff attorney Cara Gagliano. “What Erik did — posting excerpts of Proctorio’s code that showed the software features he was criticizing — is no different from quoting a book in a book review. That it’s code instead of literature doesn’t make the use any less fair.”

“Using DMCA notices to take down critical fair uses like Erik’s is absolutely inappropriate and an abuse of the takedown process,” said Gagliano. “DMCA notices should be lodged only when a copyright owner has a good faith belief that the challenged material infringes their copyrighted work — which requires the copyright owner to consider fair use before hitting send.

Which is probably why Twitter eventually reinstated Johnson's tweets in their entirety, although the message sent to him was that it did so because Proctorio's DMCA notice was "incomplete". Whatever the hell that means. You sort of have to wonder if the incomplete-ness of the notices would have been discovered if Johnson and the EFF hadn't kicked up a shitstorm about it.

Meanwhile, because of course, a lot more people know about the criticism of Proctorio thanks to its efforts to try to silence criticism. Isn't there a moniker for that?

Filed Under: anti-cheat, cheating, dmca, erik johnson, proctoring, remote learning, remote test taking, security research, software
Companies: proctorio, twitter

While Social Media Was Quick To Highlight And Limit The Spread Of False Claims Of Election Victory, Traditional Media Just Let It Flow

from the guys,-seriously? dept

For four years, all we've been hearing about is how social media was this terrible source of disinformation that had to be regulated because they were destroying democracy and all that. And so what happened last night/early this morning when Donald Trump falsely tried to claim he had won prior to all the votes being counted? Twitter and Facebook both reacted pretty quickly to flag the information, and highlight that it was misleading or false (and Twitter limited the ability to share it).

Meanwhile, nearly every major TV station allowed Trump to give his speech directly, in which he falsely claimed that he had already won states where there were still many votes to be counted, insisted that the counting of votes must be stopped (and claiming he was going to ask the Supreme Court to stop the count), and suggesting that there was fraud going on in a few states that still had significant mail-in ballots to count (most of which they hadn't been able to count prior to yesterday because of Republican legislatures blocking that ability). There was no attempt to delay what he was saying, to contextualize it or to point out it was wrong until well after it had broadcast.

And then you had journalistic malpractice via the Associated Press. Two of its White House reporters, Zeke Miller and Jonathan Lemire, decided to do a "straight" tweet repeating what Trump had said, without any context, without any caveats or context, as if it were factual reporting.

It's flabbergasting that the AP would take this view from nowhere approach to reporting on something so critical. And, even worse, since so many local newspapers just rerun AP newswire, that's the take that many people are going to see.

Other sources got it correct. Buzzfeed -- a site that old school journalists used to love to mock -- did a hell of a lot more journalism than the AP:

The Guardian, a UK paper, got the story correct as well:

We've been noting in the past year how studies have shown that TV news is the key source for disinformation and how it doesn't tend to go viral on social media until after it appears on TV.

So can someone explain to me why it is everyone wants to rush out and blame social media for disinformation?

Filed Under: content moderation, disinformation, donald trump, elections, fact checking, jonathan lemire, media, social media, zeke miller
Companies: ap, associated press, buzzfeed, facebook, guardian, twitter

Transparency Is Important; Mandated Transparency Is Dangerous And Will Stifle Innovation And Competition

from the a-distinction dept

While much of yesterday's Senate Commerce Committee hearing was focused on the pointless grievances and grandstanding of sitting Senators, there was a bit of actual news made by Mark Zuckerberg and Jack Dorsey. As we discussed earlier this week, Zuckerberg agreed for the first time that he was in support of Section 230 reform, though he declined in his opening remarks to specify the nature of the reforms he supported. And while the original draft of Jack Dorsey's opening testimony suggested full support of 230, in the given remarks he also suggested that Twitter would support changes to Section 230 focused on getting companies to be more transparent. Later in the hearing, during one of the extraordinarily rare moments when a Senator actually asked the CEOs how they would change 230, Zuckerberg also focused on transparency reports, before immediately noting that Facebook already issued transparency reports.

In other words, it appears that the "compromise" the internet companies are looking to throw to a greedy Congress regarding Section 230 reform is "transparency." I've heard from a variety of policymakers over the last few months who also seem focused on this transparency issue as a "narrow" way to reform 230 without mucking up everything else, so it seems like mandating content moderation transparency may become "a thing."

Mandating transparency, however, would be a dangerous move that would stifle both innovation and competition.

Cathy Gellis has covered this in detail in the past, and I addressed it in my comments to the FCC about Section 230. But it seems like we should be a little clearer:

Transparency is important. Mandated transparency is dangerous.

We've been celebrating lots of internet companies and their transparency reports going back to Google's decision nearly a decade ago to start releasing such reports. Over time, every large internet company (and many medium ones) has joined the bandwagon. Indeed, after significant public pressure, even the notoriously secretive giant telcos started issuing transparency reports as well (though they often did so in a secretive manner that actually hid important details).

So, at the very least, it certainly looks like public pressure, good business practices, and pressure from peers in the industry have already pushed the companies into releasing such reports. On top of that, many of the internet companies seem to try to outdo each other in being more transparent than their peers on these reports -- which again is a good thing. The transparency reports are coming and we should celebrate that.

At the very least, though, this suggests that Congress doesn't need to mandate this, as it's already happening.

But, you might say, then why should we worry about mandates for transparency reports? Many, many reasons. First off, while transparency reports are valuable, in some cases, we've seen governments and government officials using them as tools to celebrate censorship. Governments are not using them to better understand the challenges of content moderation, but rather as tools to see where more censorship should be targeted. That's a problem.

Furthermore, creating a "baseline" for transparency reports creates two very large issues that could damage competition and innovation. First, it creates a clear compliance cost, which can be quite burdensome for new and smaller websites. Facebook, Google and Twitter can devote people to creating transparency reports. Smaller sites cannot. And while you could, in theory, craft a mandate that has some size thresholds, historically that leads to gaming and other tricks.

Perhaps more importantly, though, a mandate with baseline transparency thresholds locks in certain "rules" for content moderation and creates real harm to innovative and different ideas. While most people seem to think of content moderation along the lines of how Facebook, YouTube, and Twitter handle it -- with large (often outsourced) content moderation teams and giant sets of policies -- there are many, many other models out there as well. Reddit is a decently large company. Yet it handles content moderation by pushing it out to volunteer moderators who run each subreddit and get to make their own content moderation rules. Would each subreddit have to release its own report? Would Reddit itself have to track how each individual subreddit is moderated and include all of that in its report?

Or how about Wikipedia? That's one of the largest sites on the internet, and all of its content moderation practices are already incredibly transparent, since every single edit shows in each page's history -- often including a note about the reasoning. And, again, rather than being done by staff, every Wikipedia edit is done by volunteers. But should Wikipedia have to file a "standardized" report as well about how and why each of those moderation decisions were made?

And those are just two examples of large sites with different models. The more you look, the more alternative moderation models you can find -- and many of them would not fit neatly into any "standards" for a transparency report. Instead, what you'd get is a hamfisted setup that more or less forces all different sites into a single (Facebook/YouTube/Twitter) style of content moderation and transparency. And that's very bad for innovation in the space.

Indeed, as someone who is quite hopeful for a future where the content moderation layer is entirely separated from the corporate layer of various social media sites, I worry that mandated transparency rules would make that much, much more difficult to implement. Many of the proposals I've seen to build more distributed/decentralized protocol-based solutions for social media would not (and often could not) be fit into a "standardized" model of content moderation.

And thus, creating rules that mandate such transparency reporting for companies based on the manner in which those three large companies currently release transparency reports would only serve to push others into that same model, creating significant compliance costs for those smaller entities, while greatly limiting their ability to experiment with new and different styles of moderation.

Filed Under: competition, innovation, jack dorsey, mandated transparency, mark zuckerberg, section 230, transparency, transparency report
Companies: facebook, twitter