Are Partial Liability Rules The Path Forward For Intermediary Liability Regimes? Lessons Learned From Brazil

from the marco-civil dept

The past year saw the Internet become a lifeline during the COVID-19 pandemic. But 2020 also saw increased scrutiny of online content moderation, regulation of platforms and their effects on society. While recent headlines have focused heavily on social media platforms, the conversation is much more complex: the future of the Internet as we know it depends on discussions and policies regarding intermediary liability -- the legal rule that platforms should not be liable for the content posted by their users.

Section 230 reform in the U.S. and the proposed DSA and DMA in the European Union are driving a new era of intermediary liability rule-making, and other countries have followed suit: India recently updated guidelines applicable to intermediaries, and Mexico is discussing how to ensure freedom of expression in social media platforms. Instead of letting the U.S. and Europe influence these debates, governments around the world can learn important lessons from Brazil.

With approximately 145 million Internet users, Brazil has a large and growing digital economy. There are around 10,000 ISPs operating in the country, broadband Internet is available to almost 90% of the population, and the country's Internet Exchange Point, IX.br, is one of the largest in the world. Brazil also has a strong tradition of Internet governance and policy. Since 1995, the country's "Multistakeholder Internet Steering Committee" (CGI.br) has provided technology and policy recommendations to stakeholder groups to leverage the full potential of the Internet. In 2014, the country adopted an "Internet Bill of Rights," which establishes rights and duties of individual and corporate users, businesses and the government.

Brazil has long been a pioneer in sound Internet policies and regulation and holds one of the most influential laws regarding intermediary liability not only in Latin America, but the world. The Brazilian "Marco Civil da Internet", or Civil Rights Framework for the Internet, which was approved in 2014, introduced an intermediary liability regime built upon almost two decades of practice and jurisprudence in the U.S. around CDA's Section 230.

However, Brazil decided to deviate from the path enshrined in the 1996 U.S. legal order. The Marco Civil law grants full immunity from liability to Internet access providers and clearly indicates that Internet infrastructure should not be affected by issues pertaining to the upper layers (i.e., applications layer) of the network. This law adopts a restricted and residual approach: Internet application providers are only held liable for third-party content in instances where they fail to comply with specific judicial orders to render certain content unavailable. As a general rule, private notice and take down notifications are not accepted as a means to trigger the liability system comprised in the Marco Civil. The rule however does not apply to non-consensual dissemination of intimate images and matters affecting intellectual property - the latter being subject to a specialized regime.

Perhaps the most important difference between Marco Civil and Section 230 is that Brazil has deliberately decided not to copy the "Good Samaritan" clause, meaning that the 'protection' provided by the Marco Civil in Article 19 does not grant any immunity to content moderation practices adopted by Internet application providers.

While the U.S. system encompasses ante-hoc immunity for liability from third-party content and also for a company's own good-faith behavior vis-à-vis its users, the Brazilian system covers only third-party content. In Brazil, there is no ante-hoc immunity whatsoever for harms caused by the decisions and measures taken by Internet application providers. For instance, Google was recently forced to pay compensation for "authentic ante-hoc censorship" when it applied its terms of service to remove videos from a Civil Society organization's YouTube channel. What in the U.S. would be solved by the application of the "Good Samaritan" clause, in Brazil had a different outcome.

Why should we care about Brazil's Marco Civil and why now? Around 90% of Internet users are outside the U.S. and the narrow application of the Section 230, as well as the full immunities it grants, might no longer work to guide Internet policy development elsewhere (especially considering the complex and diverse discussions related to the scope of Freedom of Speech). Also, the various proposed reforms to Section 230 in the U.S. have spilled over to other countries in very dangerous ways, including in Brazil. In their fight against Big Tech, some politicians in Brazil -emulating the behavior of US politicians- have proposed to suppress immunities that do not really exist in our legal order (as our overarching liability regime already covers issues such as the wrongful suppression of content by application providers). So, in addition to being a waste of time, these attempts are counterproductive as the country could take steps backward in Internet policy and regulation. .

The partial intermediary liability adopted by the Brazilian Marco Civil created obstacles for extrajudicial requests for content removal that throughout the 2000s helped foster legal uncertainty and very little transparency and accountability from platforms. By granting Internet applications with immunity solely for third-party behavior and content (and not for their own behavior and practices), Marco Civil contributed to increased legal predictability and fostered innovation in Brazil, as shown in by a study commissioned by the Internet Society.

The current landscape of platform and intermediary liability rulemaking marks an ethos change from previous decades. In the past, it was imperative to avoid regulating or harming the Internet through overregulation. Today regulation is no longer a taboo. However, regulation must be wise, principled-based and aimed at the correct target in the complex digital ecosystem.

Regulators must resist adopting policies that penalize the behavior of social media platforms as they ultimately punish all users who post content on these platforms. Rules aimed at social media platforms will end up impacting other types of applications for the mere fact that they operate on the same layer of the Internet. Any regulation that forces Internet infrastructure providers to enter the business of content moderation would be dangerous. The consequences for freedom of expression, innovation and a dynamic digital economy would be significant.

How governments decide to address intermediary liability in the near future is critical for users and for the Internet. We face a critical juncture where we can either get this right or get it wrong. Learning from Brazil's Marco Civil law is a step in the right direction.

Bruna Martins dos Santos is Advocacy Coordinator for Data Privacy Brazil Research and Diego Canabarro is Senior Policy Manager for the Internet Society.

Filed Under: brazil, intermediary liability, marco civil

Amazon's Idea For A Mesh Network Is Cool; Its Method Of Rolling It Out Is Not

from the c'mon-guys dept

Over the weekend there was a bit of a reasonable fuss raised after Ars Technica noted that all of the various Amazon connected devices (including Alexa, Echo, Ring, etc.) would become part of a mesh network called Amazon Sidewalk, in which the devices would be sharing a tiny tiny bit of bandwidth across the network of devices. The idea behind the mesh network is kind of cool, and there are some clear benefits to using it.

But, of course, this is Amazon we're talking about -- a giant company, and the method of rolling this out seems to have caught a ton of people by surprise: namely opting everyone into the program with a short timeline to opt-out. That seems less than ideal. Lots of privacy folks are concerned, in general, with two aspects of this: the fact that people may be suddenly sharing data with their neighbors without necessarily realizing it, and the tie-in to Amazon, which is (again) a large company that tends to collect quite a bit of data on people. To its credit, Amazon released a pretty comprehensive whitepaper exploring the privacy and security protections they've built in to Sidewalk, and my guess is that for many consumers the benefits of easier setup and better connectivity via Sidewalk will seem worth it to them.

The real issue, then, is forcing everyone into the network. Obviously, it's no surprise why this was done. A mesh network really only works if you have enough nodes on the network to make it useful. So it makes sense that Amazon would want as many of the devices to be on the network on day one as possible. However, given the company and the public scrutiny it has received of late, it seems like it should have anticipated these concerns a lot more, pushed for an opt-in setup (perhaps with incentives), rather than jumping to the "hey, we're adding this automatically" approach.

While it's possible that Amazon is betting that the concerns over this will blow over, and having so many nodes on the network will make it worthwhile to take the short-term heat, it still surprises me that the big internet companies don't take more steps to alleviate these kinds of concerns up front, including taking a more cautious approach. But, perhaps that's why I don't run a giant internet company.

Filed Under: alexa, amazon sidewalk, echo, iot, mesh network, opt-in, opt-out, privacy, ring, sharing
Companies: amazon

Obnoxious Repair Monopolies Keep Turning Farmers Into Activists

from the this-isn't-going-away dept

Back in 2015, frustration at John Deere's draconian tractor DRM helped birth a grassroots tech movement dubbed "right to repair." The company's crackdown on "unauthorized repairs" turned countless ordinary citizens into technology policy activists, after DRM (and the company's EULA) prohibited the lion's share of repair or modification of tractors customers thought they owned. These restrictions only worked to drive up costs for owners, who faced either paying significantly more money for "authorized" repair (which for many owners involved hauling tractors hundreds of miles and shelling out thousands of additional dollars), or toying around with pirated firmware just to ensure the products they owned actually worked.

Six years later and this movement is only growing, thanks in large part to farmers who are tired of getting ripped off:

"Schweitzer wound up sending his tractor to the dealer. He says it took about a month for the repair to get done. His bill to replace the fuel sensor? Nearly $5,000. He says a local independent mechanic would have charged only a small fraction of that. Schweitzer was fortunate he had an old backup tractor, so his crop didn't get ruined, but the experience made Schweitzer eager to fight for change."

Hoping to appease angry consumers and lawmakers, in late 2018, John Deere and a coalition of other agricultural hardware vendors promised (in a "statement of principles") that by January 1, 2021, Deere and other companies would make repair tools, software, and diagnostics readily available to the masses. But then it turned around and ignored those promises completely. Meanwhile, the support headaches for many of these farmers continues, according to Kevin O'Reilly of U.S. PIRG:

"I myself called 12 different John Deere dealers in six different states, asking to try to buy the software tools and diagnostics that you need to fix your tractor, and at 11 of the 12, I was told that I couldn't buy them. Sometimes I was told they didn't even exist. And then the 12th gave me an email address to reach out to, which I had never heard back from."

John Deere certainly isn't alone in trying to monopolize repair, resulting in massive backlash and proposed legislation in a growing parade of states. But companies like John Deere, Apple, Microsoft, and others have been brutally effective in using grotesque and false arguments to scuttle such legislation so far. Including claims that right to repair reform poses vast privacy and security risks (not true, says the FTC), or that improving repair options emboldens sexual predators and rapists.

27 different right to repair laws were proposed this year, some of them improving repair options for essential medical equipment during COVID-19. But thanks to a coalition of wealthy companies fighting tooth and nail against reform (using a variety of dodgy and false claims), not a single one has passed so far. That's working out well for companies like Apple and John Deere, but it's abundantly clear that when your obnoxious repair restrictions keep turning rural farmers into hard-nosed activists, you might be facing a tough fight over the longer haul.

Filed Under: activists, eula, farmers, ownership, right to repair, tractors
Companies: john deere

Judge Dumps Iowa Prosecutors' Attempt To Jail An Activist For Sharing A Law Enforcement Document With Journalists

from the setting-fire-to-the-first-amendment-like-it's-just-an-american-flag dept

Polk County, Iowa prosecutors are making a name for themselves. And that name is "Enemy of the First Amendment." Earlier this year, Polk County prosecutor John Sarcone tried and failed to convict a Des Moines Register journalist for attending a protest and attempting to comply with conflicting orders from law enforcement.

According to the prosecutor, journalist Andrea Sahouri failed to disperse when ordered to, even though other cops at the same scene were simply telling people to "protest peacefully." Sahouri was attempting to document the protest and was arrested as she was moving away from the epicenter of the protest. This attempt to turn First Amendment protected activity into a crime failed and the prosecutor took a rather humiliating loss in a very public fashion.

Another prosecutor from the same office -- Thomas Miller -- has just suffered a similar, very public loss. Activist Viet Tran was arrested last summer after he shared a Des Moines Police Department bulletin with journalists during a televised interview. The PD claimed the document was super-secret and not shareable without committing a crime. The bulletin contained information about protesters targeted by the PD, including some who had vandalized a police car.

The prosecutor (along with the PD) attempted to turn the sharing of public interest info with journalists into a felony charge: unauthorized dissemination of intelligence data. Normally, that sort of charge would only be leveled at the person who had shared it with someone who did not have authorization to view it, like whoever leaked it to Tran. Tran isn't a police officer, so his acquisition and sharing shouldn't be a crime. But that's not how the prosecutor's office saw it. And, in keeping with the First Amendment shredding vindictiveness of this whole debacle, the PD never asked the journalist Tran shared the document with to remove it from her Twitter feed.

Following a failed attempt to keep Tran locked up until his trial by spiking his bail to $20,000 (rather than the usual $3,000 for Class D felonies), the prosecutors' office has earned its second straight loss in the same case. The court said that even if the government was right about this seeming misuse of "unauthorized dissemination" charges, it was wrong about the document's contents.

On Wednesday, the court agreed that the bulletin didn't meet the definition of intelligence data, which is defined by the Iowa Code as "information on identifiable individuals compiled in an effort to anticipate, prevent or monitor possible criminal activity."

"It was not compiled in an effort to anticipate, prevent or monitor possible criminal activity. The bulletin was prepared because the police department had concluded that criminal acts had already occurred," Fifth Judicial District Judge Jeffery Farrell wrote Wednesday in his order to dismiss the charge against Tran.

Making this loss even more of an embarrassment for the rightfully maligned prosecutors office (feel free to continue maligning in the comments) was the prosecutor's best argument for jailing Tran:

Assistant Polk County Attorney Thomas Miller argued in a court document that the "court is not constrained by this limited prior use of this statute." Anyone who disseminated intelligence information, including journalists, could be charged, he wrote.

Ah, but what about the journalist who posted the same document to Twitter? (Oh, and let's not forget the First Amendment.)

Andersen, the journalist Tran shared the bulletin with, was not charged because "the police have the ability to use discretion when deciding whom to recommend for criminal charges," Miller wrote.

There it is. That's the prosecutor admitting the government will abuse laws to punish people they think they can get away with punishing. Some troublemaking minority advocating on behalf of black victims of police violence? That's a felony. A journalist likely backed by her employer's legal team? That's a free pass.

Nice work there, Mr. Miller. Not only did you blow this case but you made it clear law enforcement isn't about enforcing laws. It's about keeping certain people in line. This is how prosecutorial "discretion" almost always works. It goes after the weakest, least protected members of our society and ignores anyone too rich, too white, or perhaps just too lawyered-up to push around.

Filed Under: 1st amendment, andrea sahouri, des moines police department, intimidation, iowa, john sarcone, journalism, polk county, thomas miller, viet tran

Daily Deal: TREBLAB Z2 Bluetooth 5.0 Noise-Cancelling Headphones

from the good-deals-on-cool-stuff dept

The Z2 headphones earned their name because they feature twice the sound, twice the battery life, and twice the convenience of competing headphones. This updated version of the original Z2s comes with a new all-black design and Bluetooth 5.0. Packed with TREBLAB's most advanced Sound2.0 technology with aptX and T-Quiet active noise-cancellation, these headphones deliver goose bump-inducing audio while drowning out unwanted background noise. These headphones are on sale for $71.97.

Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team.

Filed Under: daily deal

It's Not Personal: Content Moderation Always Involves Mistakes, Including Suspending Experts Sharing Knowledge

from the it-happens dept

I keep pointing out that content moderation at scale is impossible to do well. There are always going to be mistakes. And lots of them. We've spent years highlighting the many obvious mistakes that websites trying to make moderation decisions on thousands, hundreds of thousands, or even millions of pieces of content are going to make every day. It's completely natural for those who are on the receiving end of obviously bogus suspensions to take it personally -- though there does seem to be one group of people who have built an entire grievance complex on the false belief that the internet companies are targeting them specifically.

But if you look around, you can see examples of content moderation "mistakes" on a daily basis. Here's a perfect example. Dr. Matthew Knight, a respiratory physician in the UK, last week tweeted out a fairly uncontroversial statement about making sure there was adequate ventilation in the hospitality industry in order to help restart the economy. At this point, the scientific consensus is very much that good ventilation is absolutely key in preventing COVID transmission, and that the largest vector of super spreader events are indoor gatherings with inadequate ventilation. As such this tweet should be wholly uncontroversial:

And yet... despite this perfectly reasonable tweet from a clearly established expert, Twitter suspended his account for "spreading misleading and potentially harmful information related to COVID-19." It then rejected Dr. Knight's appeal.

Thankfully it appears that Twitter eventually realized its mistake and gave Dr. Knight his account back. Lots of people are (understandably) asking why Twitter is so bad at this, and it's a fair enough question. But the simple fact is that the companies are all put in an impossible spot. When they weren't removing blatant mis- and disinfo about COVID-19, they were getting slammed from plenty of people (also for good reason). So they ramped up the efforts, and it still involves a large group of (usually non-experts) having to make a huge number of decisions very quickly.

There are always going to be mistakes. As Harvard's Evelyn Douek likes to note, content moderation is all about error rates. Each choice you make is going to have error rates. The biggest questions are what kinds of errors are preferable, and how many are you willing to deal with. Should the focus be on minimizing false positives? Or false negatives? Or somehow trying to balance the two? And the answers to that may vary given the circumstances and may change over time. But one thing that is clear is that no matter what choices are made, mistakes inevitably come with them, because content moderation at scale is simply impossible to do well.

Filed Under: content moderation, covid, matthew knight
Companies: twitter

Money City: Our New Game To Explore The Future Of Money Is Now Available To Everyone

from the welcome-to-money-city dept

As folks may know, over the past few years, the Copia Institute (the think tank arm of Techdirt) has been building out a series of games -- both of the tabletop variety and for events (both in person and virtual). It began with an election simulation we helped to design with some political consultants (which got a lot of attention for bizarre reasons) and has included a number of other projects, including making a boxed version of a CIA training game, a scenario planning game that was used to inspire science fiction writers to write about the future of work, an election disinformation simulation game, to a fun game to explore a variety of future timelines by looking backwards from the future, and a game workshop to explore the future of AI (the results of which are about to be used in a new X-Prize competition).

We've just created a Copia Gaming page about all of our many game related projects, and we have many more in the pipeline. We believe, quite strongly, that games are the perfect tool for explaining the present and exploring the future, and we use our games for both purposes. The games for explaining the present, such as the election simulations and the CIA training game, take on complex real world situations, that have many nuances and trade-offs, and allow people to learn about them in a way that differs than just reading a long article or listening to a panel. It puts players in that world, with responsibility for making actual decisions, and with real incentives. Over and over again we've heard from participants about how the games opened their eyes to understanding real world events with a totally new perspective, even if they thought they'd understood them before.

The games to explore the future are slightly different, but equally useful. Most people are familiar with traditional scenario planning or even some aspects of "futurism," but we've found that those processes are either boring or fall into traditional traps that make the end result not nearly as insightful or interesting. By adding a game element to them, we've found that, again, it really takes people out of their own pre-set perspective, and opens them up to many more creative possibilities, by putting them into different roles, with different incentives, resources, and challenges.

And today we're releasing an open source toolkit for one of those "explore the future" games we created earlier this year, called Money City, sponsored by Grant For The Web which we ran over three separate sessions at this year's Mozfest (Mozilla's big annual conference).

Our game design partner, Randy Lubin of Leveraged Play, has a writeup about the ins-and-outs of the game and some of the design choices that were made in development, and we'll be releasing a podcast later today talking more about it as well.

However, the basics of the game were to create a fun game environment in which players would take on the roles of certain factions in a dystopian futuristic world, in which more or less everything is controlled by one giant tech company: MegaCorp. The players join different factions with different goals, resources, and visions of the future, but united with one common goal: to take down MegaCorp, and rethink how society (and money) works without such a dominant force controlling everything and making all the decisions. The game explores a number of themes around money, currency, business models, competition, and just generally what kind of future we should want.

We ran three separate sessions of Money City at MozFest, with wildly different results each time. The toolkit includes recaps of these games so you can see some of the unexpected scenarios that developed — like a clandestine sabotage of MegaCorp by the city's artificial intelligence experts, a business boom fueled by peer-to-peer loans using virtual currency from an MMO game, and a hacking scandal involving a popular line of robotic pets.

The open source toolkit includes a facilitator guide, a basic "run of show" document, and a variety of other assets needed to run the game. We ran the game on a fun virtual meeting platform called Spatial Chat, that worked great to get the atmosphere right for the game. However, knowing that many people these days use Zoom for everything, we provide some basic ideas for converting the game to Zoom (or to other virtual platforms of your choice). The game can also be converted fairly easily to in-person events (assuming those actually are coming back in the nearish future).

Alternatively, if you're interested, you can reach out to us about running the game for you at your events or gatherings, or about running one of our other games (or commissioning new games to meet your own needs).

Filed Under: copia gaming, future of money, games, money city

Experts Fear Biden Broadband Plan Won't Fix The Real Problem: Monopolization

from the do-not-pass-go,-do-not-collect-$200 dept

We've already noted how the Biden broadband plan is good, but arguably vague. As in, the outline proclaims that the government will boost competition and lower prices, but it doesn't actually get at all specific about how it actually hopes to do that. There are some promising aspects, like a pledge to embrace the growing wave of grass roots community broadband efforts popping up around the country, but again, it's not clear how that's going to happen. For example there are 17 state laws (usually written by telecom lobbyists) prohibiting such efforts, and federal efforts to shoot down those protectionists laws haven't gone well.

The original Biden broadband plan promised to take $100 billion (from a total of $2.3 trillion in infrastructure funding) to “revitalize America’s digital infrastructure" and "bring affordable, reliable, high-speed broadband to every American." But experts like Victor Pickard and David Elliot Berman at the University of Pennsylvania argue that the plan likely doesn't really go far enough. In part because it doesn't really strike at the heart of the issue. Namely, regional telecom monopolization:

"it remains to be seen how the government will confront the broadband industry’s entrenched market power. Behemoths like Comcast and Verizon exert immense control over the Internet’s last-mile infrastructure. During the pandemic, these corporations have further tightened their grip, forcing hard-hit communities to plead with these giants for a modicum of reprieve from their exorbitant monthly subscription fees. As a recent damning Free Press report shows, these ISPs are enjoying record profits as they increase prices to their customers and reduce investments in their infrastructure. For instance, in Philadelphia—home to Comcast’s global headquarters—students living in low-income neighborhoods often lack the high-speed Internet connection they need to learn remotely. Meanwhile, Comcast’s profits are soaring."

There's no shortage of organizations and experts arguing that publicly-owned broadband is a major part of any broadband solution, and whereas past administrations demonized such concepts to a comical degree, the Biden team at least recognizes the importance of the concept. Still, while some 750 towns and cities have explored some variant of community owned broadband out of frustration with market failure, federal-level publicly-owned broadband as a concept remains a political non-starter in the US, and lobbyists are working hard to ensure any funding doesn't go to piecemeal community-based efforts either.

The primary solution for broadband gaps in the US is to throw a parade of subsidies at the problem. But such efforts don't help if that money doesn't wind up where it needs to go. And it often doesn't wind up where it needs to go thanks to intentionally terrible maps and a broken subsidization process (fixes for both seeming perpetually around the next corner). Such problems persist thanks to the rampant corruption of state and federal government officials. So if you don't fix the corruption and the monopolization, you don't fix the underlying causes of US telecom dysfunction.

For Pickard and Berman the answer, in part, lies in increasingly treating broadband like an essential public (and publicly owned) resource on a much broader scale, an argument the pandemic added a lot of fuel to:

"Public ownership and governance of the Internet—the development of which was funded by the public —is essential as we look at the Biden plan and beyond. From ordinary people posting instructional cooking videos on YouTube to volunteers updating Wikipedia entries, our collective labor is what makes the Internet valuable. The Internet is our commonwealth, not the plaything of Comcast and Verizon. It’s a public good that yields tremendous positive externalities to all of society. Yet time and again, corporate ISPs have proven to be poor stewards of this public good."

Of course getting from here to there is a pretty steep uphill climb. But even less aggressive options, like Biden's $100 billion broadband plan, is having trouble making it through the lobbying gauntlet. The plan is already slowly shrinking in scope in a bid to appease to politicians in thrall to telecom monopolies (read: a majority of Congress, and the near-entirety of the GOP). And for all of its talk about the essential nature of broadband during the pandemic, the Biden team still hasn't even gotten around to fully staffing the FCC yet, much less restoring any of the consumer protection authority stripped away by the Trump administration.

Fixing US broadband is going to require some extremely bold decision making that will almost certainly piss off AT&T, Comcast, Verizon, and other entrenched regional monopolies. And despite some promising rhetoric, it remains utterly unclear if anybody in DC actually has the backbone required to do so.

Filed Under: broadband, broadband plan, competition, monopolization