A ContentID For Online Bullying? What Could Possibly Go Wrong...

from the let's-think-this-through dept

Let me start out by saying that I think online harassment and bullying is a significant problem -- though also one that is often misrepresented and distorted. I worry about the very real consequences of those who are bullied, harassed and threatened online, in that it can often lead to silencing voices that need to be heard, or even causing some to not even bother to participate for fear of the resulting bullying. That said, way too frequently, it seems that those who are speaking out about online bullying assume that the best way to deal with this is to move to push for censorship as the solution. This rarely works. Too frequently we see "cyberbullying" being used as a catchall for attacking speech people simply do not like. Even here at Techdirt, people who dislike our viewpoint will frequently claim that we "bullied" someone, merely for pointing out and discussing statements or arguments that we find questionable.

There are no easy answers to the question of how do we create spaces where people feel safer to speak their minds -- though I think it's an important goal to strive for. But I fear the seemingly simple idea of "silence those accused of bullying" will have incredibly negative consequences (with almost none of the expected benefits). We already see many attempts to censor speech that people dislike online, with frequent cases of abusive copyright takedown notices or bogus claims of defamation. Giving people an additional tool to silence such speech will be abused widely, creating tremendous damage.

We already see this in the form of ContentID from YouTube. A tool that was created with good intent, to deal with copyright infringement on the site, is all too often used to silence speech on the site, either to silence a critic or just through over-aggressive robots.

So, imagine what a total mess it would be if we had a ContentID for online bullying. And yet, it appears that the good folks at SRI are trying to build exactly that. Now, SRI certainly has led the way with many computing advancements, but it's not clear to me how this solution could possibly do anything other than create new headaches:

But what if you didn’t need humans to identify when online abuse was happening? If a computer was smart enough to spot cyberbullying as it happened, maybe it could be halted faster, without the emotional and financial costs that come with humans doing the job. At SRI International, the Silicon Valley incubator where Apple’s Siri digital assistant was born, researchers believe they’ve developed algorithms that come close to doing just that.

“Social networks are overwhelmed with these kinds of problems, and human curators can’t manage the load,” says Normal Winarsky, president of SRI Ventures. But SRI is developing an artificial intelligence with a deep understanding of how people communicate online that he says can help.

This is certainly going to sound quite appealing to those who push for anti-cyberbullying campaigns. But, at what cost? Again, there are legitimate concerns about people who are being harassed. But one person's cyberbullying could just be another person's aggressive debate tactics. Hell, I'd argue that abusing tools like contentID or false defamation claims are a form of "cyberbullying" as well. Thus, it's quite possible that the same would be true of this new tool, which can be used to "bully" those the algorithm decides is bullying as well.

Determining copyright infringement is already much more difficult than people imagine -- which is why ContentID makes so many errors. You have to take into account context, fair use, de minimis use, parody, etc. That's not easy for a machine. But at least there are some direct rules about what truly is "copyright infringement." With "bullying" or "harassment," there is no clear legal definition to match up to and it's often very much in the eye of the beholder. As such, any tool that is used to "deal" with cyberbullying is going to create tremendous problems, often just from misunderstandings between multiple people. And that could create a real chilling effect on speech.

Perhaps instead of focusing so much technical know-how on "detecting" and trying to "block" cyberbullying, we should be spending more time looking for ways to positively reinforce good behavior online. We've built up this belief that the only way to encourage good behavior online is to punish bad behavior. But we've got enough evidence at this point showing how rarely this actually works, that it seems like perhaps it's time for a different approach. And a "ContentID for harassment" seems unlikely to help.

Filed Under: automation, bullying, contentid, cyberbullying, harassment
Companies: sri

New Zealand Parliament Overwhelmingly Decides Free Speech Must Take A Backseat To Cyberbullying Concerns

from the being-mean-but-with-technology?-that's-a-jailing dept

New Zealand is the latest country to "do something" about online trolling. A rather comprehensive anti-cyberbullying act passed its third reading in the Parliament by a significant margin (116-5) and is awaiting royal assent. The "Harmful Digital Communications Act" criminalizes plenty of speech, mainly through the use of broad wording.

Principle 1
A digital communication should not disclose sensitive personal facts about an individual.

Principle 2
A digital communication should not be threatening, intimidating, or menacing.

Principle 3
A digital communication should not be grossly offensive to a reasonable person in the position of the affected individual.

Principle 4
A digital communication should not be indecent or obscene.

Principle 5
A digital communication should not be used to harass an individual.

Principle 6
A digital communication should not make a false allegation.

Principle 7
A digital communication should not contain a matter that is published in breach of confidence.

Principle 8
A digital communication should not incite or encourage anyone to send a message to an individual for the purpose of causing harm to the individual.

Principle 9
A digital communication should not incite or encourage an individual to commit suicide.

Principle 10
A digital communication should not denigrate an individual by reason of his or her colour, race, ethnic or national origins, religion, gender, sexual orientation, or disability.

Violating these principles could result in a two-year prison sentence. Encouraging someone to take their own life could result in an additional year in prison, even if no suicide attempt is made.

A quick glance at the principles reveals several flaws. First off, journalists are going to have a hard time avoiding disclosing "sensitive facts about an individual." While the courts are obliged to weigh the public interest during enforcement of this act, it sets a very low bar for those who wish to file complaints. And while deliberating this aspect, courts may issue interim orders to take down "offending" material until the matter is resolved.

That's just one aspect that chills speech. Lowering the bar for "harm" to "serious emotional distress" is another. The wording hints at objectivity with "reasonable person" but also asks the "reasonable person" to act as an empathetic proxy for the person filing the complaint.

Principle 10 fortunately limits itself to targeted individuals, rather than criminalizing the denigration of entire groups. Ignorance shouldn't be criminalized. There's far too much of it in the world, but putting people in jail for being racist, sexist or bashing their least-favorite religion does nothing to change the minds of those involved and will needlessly harm the lives of people who are far more stupid than dangerous.

On top of this, the new law would add additional responsibilities for social media platforms and site owners. They are invited to apply for New Zealand-specific "safe harbors," but these only provide them temporary immunity from prosecution. Once the court order arrives, platform/site owners are obliged to remove the offending post(s). Failure to do so puts the site owners in line for $50,000 fines and/or prison terms. So, it's not really a "safe harbor." All it does is prevent the person filing the complaint from going after the platform/site first, rather than the person actually posting the offending content.

The arguments for the passage of the bill were the expected ones. Legislator Jacqui Dean admitted there were concerns about the new law -- especially considering there were plenty of laws on the books already to deal with a majority of the offenses (defamation, harassment, etc.), but still felt more was needed because children.

There have been many thoughtful contributions on this Harmful Digital Communications Bill. I do acknowledge that it is a legislative response that some view as impinging on freedom of speech and perhaps might be too heavy-handed. What I would say is that the protection of our young people in particular—their protection from cyber-bullying—is so very important that I think this bill is a very good step, and I commend it to the House.

This argument -- from Deputy Leader Tracey Martin -- is particularly horrifying, especially considering her earlier statement that the internet's mutating "threats" are the reason new legislation is needed. Martin thinks there should be a clear delineation between those who receive the "public interest" exemption and those who don't, despite her previous acknowledgment that the entire situation remains in a constant state of flux.

Ms Ardern addressed the question of whether—there was conversation at the select committee—bloggers were really “media”. I would make this statement: media can certainly be bloggers; bloggers cannot, and should not, ever be considered as media. The media has actually taken training. They have criteria. They have boundaries that they work inside of, and they can be held accountable inside of them. Anybody who wants to set up a blog and just vent their opinion should not be considered media. So with regard to that, I would hope—and I know it was pushed by certain members of the blogging society at the select committee—that the line maintained by media, true media, is maintained.

Some of the worst arguments appeared outside of the legislation. This editorial, written by Minister of Justice, Amy Adams, hits all the speech tropes in three sentences.

It's worth remembering that no right or freedom is absolute. Just as you can't scream fire in a crowded theatre, nor should you be allowed to threaten someone online, incite people to kill themselves on social media, or share revenge porn with the world, and claim that as your democratic right. Our rights can, and should be, subject to reasonable limits where demonstrably justified in a free and democratic society.

The only mitigating factor in Adam's "free speech is more about what's not allowed" argument is that her view comes from the viewpoint of a New Zealander, rather than someone deliberately misreading the First Amendment.

One of the few to vote against the bill (and against his own party) was Gareth Hughes, who made several good points during his address, starting with the bill's creation of two sets of laws that treat online and offline very differently.

In my time here I have seen some very badly drafted tech legislation. We have seen the Telecommunications (Interception Capability and Security) Act and the Copyright (Infringing File Sharing) Amendment Act, or the “Skynet Act”, where badly conceived law came together with under-informed legislators, all with the best of interests, to pass terrible laws. So, for the first time in my parliamentary career, today I am casting a separate vote from my party, because I believe this law, this bill, is the wrong solution to the right question, which is “What do we do about cyber-bullying?”. Ultimately, this bill is overly broad, it risks limiting our freedom of expression and the important role of the media in our democracy, and it introduces a precedent that one thing can be legal offline but illegal online… I believe there are better ways to go about reducing cyber-bullying, such as the approved agency and funding education, without making a new criminal offence just for the digital world.

[...]

As Tim Watkin has pointed out, this law applies not just to bloggers but to journalists as well. He points to the ludicrous situation that a public interest story of, say, the corrupt MP, as we have given the example of before, who is subject to harm by the story, would be perfectly legal if it were published in a newspaper but punishable if posted on that media organisation’s website or transmitted electronically.

David Seymour (Leader - ACT) noted the bill's "do something" origin and its overall awfulness.

This bill is a case study in bad lawmaking. All of the elements of bad lawmaking exist in this bill. Not since we microchipped dogs in the hope that it would prevent a particularly egregious dog event has there has been such a bad law before this House. First, you had the high-profile and really quite disgraceful event. Then you had the discovery that in actual fact the laws in place had not been properly used by the agency in place to prevent the harms that occurred there. Then you had the knee-jerk reaction from the politicians, who said: “We must do something. This bill is indeed something; therefore, we will pass this bill, and it must be the right thing to do.”

[...]

What exactly does this bill do? Well, the first thing that it does is introduce a set of communications principles that might be appropriate if we were about to embark on a school camp, but which are not appropriate for the governance of 4.5 million people, many of whom are adults—and the children among them are the responsibility of adults. It says that you cannot offend somebody. So, for instance, would Flight of the Conchords’ song Albi the Racist Dragon be offensive if it was communicated online? Well, we are told, in defence of the “badly burnt Albanian boy” from last week, that of course this law would never be used in such a silly and un-sensible way. That is the problem with the law: it gives no protection. We are supposed to rely on the beneficence of the enforcers. That is bad lawmaking.

Seymour also pointed out the "government knows best" condescension being displayed toward opponents of the broadly-worded bill.

The pace of development on the internet is so rapid that, in actual fact, the incentive for the hosts of content is to give good experiences. If it is true that harm is being done, then the one person who has both the incentive and the means to rapidly mitigate that harm is the host, whether that be Facebook, or Ask.fm, or Twitter, or whoever else hosts the website. For the same reason that harmful digital communication becomes exponentially greater, those people have the tools to mitigate it. But you do not hear that from the Government or from the supporters of this bill. There is a moralising tone from them: if you have nothing to hide, then you have nothing to fear; that these vague principles will not be enforced for silly reasons, you understand; that as long as you are sensible and you are doing nothing wrong, it will not be used against you.

This mentality is fully on display in the Minister of Justice's op-ed:

Some commentators claim the bill's measures erode freedom of expression and prevent genuine media reporting. These fears are unfounded and I'm confident the bill has struck the right balance between preventing real harm and preserving valuable free speech.

Critics have hysterically claimed it will muzzle journalists from pursuing stories and restrict cartoonists from publishing satire.

This is simply untrue.

In defense of her claims, the Minister points at the bill's intentions.

The bill aims to stop and prevent the circulation of online abuse, not curtail people's freedoms of expression or suppress the media.

As if broadly-written laws have never resulted in unintended consequences and mission creep. According to Adams, the government is a good steward of citizens' rights and never acts out of malice, self-interest or pure stupidity. The government can be trusted to fight for citizens rather than allow the powerful to abuse a bad law for their own ends. Really. Trust us. This time we mean it.

Filed Under: cyberbullying, free speech, new zealand, trolling

CNBC Worries About Poor, Helpless Multinational Corporations Who Are Being 'Cyberbullied'

from the worst.-'victims.'-ever. dept

Do you remember the last time your tweets made a corporation cry? Or when you Facebooked a multinational into deleting its home page? Or that one time when police were called in to investigate threats to withhold future purchases?

In an article far less overwrought than its title would suggest, some analysts are comparing social media backlash to "cyberbullying."

Cyberbullying isn't something normally associated with large corporations. However, in the last week alone social networking played a big role in humbling two culturally influential institutions: Starbucks and DC Comics. Both companies beat a hasty retreat from planned campaigns, and in the process learned a painful lesson in frontier Internet justice.

They join a gallery of big companies that have learned the hard way that hell hath no fury like a Twitter user scorned. So has social media ushered in the age of cyberbullying of big companies?

According to experts, the answer is yes … and no. By and large, the Internet is seen by many as a way to hold companies accountable for their business practices, and give consumers a measure of leverage. Yet it also means big firms no longer totally control their own narratives, and companies can quickly become helpless bystanders in their own story.

Since the average social media user's market cap is far below that of the "bullied," this would seem to be be more evidence that the internet levels the playing field like nothing that has come before it. Sure, pre-internet backlash was possible, but it involved letter-writing campaigns that worked only for those who enjoyed delayed gratification, boycotts that generally had more effect on local media coverage than the bottom lines of the companies targeted, and petitions with actual handwritten signatures very few people in the upper management levels ever saw.

Now, the backlash is not only immediate, but it's massively multiplied. The word "firestorm" is thrown around, but despite its causal ubiquity, it's actually a rather apt metaphor. When a company (and there's so many to choose from) screws up -- especially if its first reaction is to quell/ignore criticism -- the complaints of the few become the movement of the masses. An entity's reputation can go up in flames in a matter of hours, especially if its responses are combative or defensive. Memory-holing offending content or killing off social media pages is completely suicidal. And complaints about the "unfairness" of the criticism (even when the criticism isn't legitimate) isn't going to turn the tide, because no one really wants to hear a multi-million dollar corporation indulging in self-pity.

Of course, the same platforms that are decried as being tools of bandwagon-jumping haters can be used proactively by companies. Too many companies believe a fire can be extinguished by waiting for it to burn itself out. Engagement means more than blasting out corporate site links and discount codes. It means listening. It also means publicly dealing with screw-ups in real time. Some companies can't handle this, having outsourced their social media presence to random employees or interaction-free bots. The internet can be "won," but most companies apparently aren't in the position to do so, despite years of social media unrest clearly indicating the importance of agility and responsiveness.

No matter what it feels like to be the target of the well-oiled internet hate machine, it's a stretch to call this sort of thing "bullying." Wrong or right, internet backlash usually involves "punching up." Sure, the number of people involved can give this a "bullying" appearance, but the same tools being used to criticize can be used to connect. Far too many companies either can't or won't perform this essential part of maintaining an "online presence." And when they don't, they lose. Unlike most other bullying, the power still remains in the hands of the "bullied." It's up to them to use it effectively.

Filed Under: corporations, cyberbullying, public criticism, social media

New York Court Declares Albany County's Cyberbullying Law Unconstitutional

from the good-intentions,-horrible-laws dept

New York's highest court has just struck down a cyberbullying law that went (as many do) past the point necessary and started walking all over First Amendment-protected speech. The wording of the law (particular to Albany County) defined cyberbullying in the following loose language.

1. "any act of communicating … by mechanical or electronic means,”

2. “including posting statements on the internet or through a computer or email network,”

- “disseminating embarrassing or sexually explicit photographs;”

- “disseminating private, personal, false or sexual information,”

- “or sending hate mail,”

3. ”with no legitimate private, personal, or public purpose,”

4. “with the intent to harass, annoy, threaten, abuse, taunt, intimidate, torment, humiliate, or otherwise inflict significant emotional harm on another person.” As

Eugene Volokh points out, this wording is problematic, to say the least.

This wasn’t limited to offensive speech to a person, but included offensive speech about people; and it wasn’t limited to speech that falls within a First Amendment exception (such as threats, or knowing defamatory falsehoods)[...] Note, for instance, that the ordinance criminalizes “disseminating … personal … information” — even if it’s not “false” or “sexual” — about any person, if it’s done “with the intent to … annoy …, abuse, [or] taunt” and “with no legitimate private, personal, or public purpose,” whatever that might mean.

The state's highest court found that this language was too broad and too harmful to protected speech to be allowed to continue.

Based on the text of the statute at issue, it is evident that Albany County "create[d] a criminal prohibition of alarming breadth" (United States v Stevens, 559 US at 474). The language of the local law embraces a wide array of applications that prohibit types of protected speech far beyond the cyberbullying of children. As written, the Albany County law in its broadest sense criminalizes "any act of communicating . . . by mechanical or electronic means . . . with no legitimate . . . personal . . . purpose, with the intent to harass [or] annoy. . . another person." On its face, the law covers communications aimed at adults, and fictitious or corporate entities, even though the county legislature justified passage of the provision based on the detrimental effects that cyberbullying has on school-aged children.

The county law also lists particular examples of covered communications, such as "posting statements on the internet or through a computer or email network, disseminating embarrassing or sexually explicit photographs; disseminating private, personal, false or sexual information, or sending hate mail." But such methods of expression are not limited to instances of cyberbullying -- the law includes every conceivable form of electronic communication, such as telephone conversations, a ham radio transmission or even a telegram. In addition, the provision pertains to electronic communications that are meant to "harass, annoy . . . taunt . . . [or] humiliate" any person or entity, not just those that are intended to "threaten, abuse . . . intimidate, torment . . . or otherwise inflict significant emotional harm on" a child.

In considering the facial implications, it appears that the provision would criminalize a broad spectrum of speech outside the popular understanding of cyberbullying, including, for example: an email disclosing private information about a corporation or a telephone conversation meant to annoy an adult.

The county (and the two dissenting judges) argued that the law could be "fixed" by tightening the language and restricting it solely to communications targeting children. All well and good, but the court wasn't inclined to believe this would fix the law, and further pointed out that separation of powers prohibit judges from rewriting laws on the fly in order to make them Constitutional again.

We conclude that it is not a permissible use of judicial authority for us to employ the severance doctrine to the extent suggested by the County or the dissent. It is possible to sever the portion of the cyberbullying law that applies to adults and other entities because this would require a simple deletion of the phrase "or person" from the definition of the offense. But doing so would not cure all of the law's constitutional ills.

As we have recently made clear, the First Amendment protects annoying and embarrassing speech (see e.g. People v Golb, __ NY3d __, 2014 NY Slip Op 03426 [May 13, 2014]; People v Dietze, 75 NY2d at 52-53), even if a child may be exposed to it (see Brown v Entertainment Merchants Assn., 131 S Ct at 2736), so those references would also need to be excised from the definitional section. And, the First Amendment forbids the government from deciding whether protected speech qualifies as "legitimate," as Albany County has attempted to do.

The court followed this up by suggesting Albany legislators return to the drawing board and try crafting a better law with an eye on its Constitutional ramifications.

It is undisputed that the Albany County statute was motivated by the laudable public purpose of shielding children from cyberbullying. The text of the cyberbullying law, however, does not adequately reflect an intent to restrict its reach to the three discrete types of electronic bullying of a sexual nature designed to cause emotional harm to children. Hence, to accept the County's proposed interpretation, we would need to significantly modify the applications of the county law, resulting in the amended scope bearing little resemblance to the actual language of the law. Such a judicial rewrite encroaches on the authority of the legislative body that crafted the provision and enters the realm of vagueness because any person who reads it would lack fair notice of what is legal and what constitutes a crime.

Even if the First Amendment allows a cyberbullying statute of the limited nature proposed by Albany County, the local law here was not drafted in that manner.

The problem with many cyberbullying bills is exactly what was pointed out by the state court: the haste to do something "laudable" as a reaction to a problem tends to result in bad laws, badly written. Legislators are more concerned with moving forward quickly and eliminating possible loopholes than with addressing free speech concerns and end up roughly shoving aside Constitutional rights in their hurry to "fix" the problem.

This is only one of several problematic cyberbullying laws. Several are already in place (the state of New York has its own) and others are on their way. Very few of these will be able to survive the strict scrutiny of the court, but it generally takes a prosecutor's attempt to wield the newly-crafted, terrible-all-over law before it reaches the attention of those able to declare them unconstitutional. This usually means someone has spent a lot of time and money fighting charges resulting from a law that should never have been passed in the first place.

Filed Under: cyberbullying, free speech, new york

Canadian Cyberbullying Bill Expands Scope, Targets Open WiFi Over Terrorism, Child Porn Fears

from the every-cyber-bill-a-Frankenstein's-monster dept

The drawn-out process in which a bill becomes a law lends itself to harmful things, like mission creep and bloating. Canada's new cyberbullying legislation, problematic in its "purest" form, is now becoming even worse as legislators have begun hanging language aimed at other issues (child porn, terrorism, cable theft [?]) on the bill's framework.

As was noted earlier, language aimed at punishing revenge porn had already been attached to the bill. But the urge to target as much as possible with a broadly written bill is too much for Canada's politicians to resist. Michael Geist notes that Bob Dechert (Secretary to the Minister of Justice) took a moment during the debate to speculate about the "dangers" of "stolen" cable.

With respect to the cable, I would like the member to consider if his cable were being tapped into by someone who was transmitting child pornography over the Internet, or if his home Wi-Fi was being tapped into by someone who was using it to cyberbully another child, he would want to know about that and he would want that to stop. The modernization of those provisions is simply to bring them up to date.

The amendments proposed on those long-standing offences of stealing cable are already in the Criminal Code in section 327. They simply update the telecommunication language to expand the conduct, to make it consistent with other offences…

However, I would like him to think about the potential for someone who is doing cyberbullying, transmitting child sexual images, or perhaps planning a terrorist act, doing it by tapping into some law-abiding citizen's cable or Wi-Fi Internet access.

The code Dechert refers to deals with theft of services. What Dechert is hoping to do is turn a targeted law into something that can be used to pursue vagaries. By throwing cyberbullying, child porn and terrorism into the mix, Dechert is hoping to limit opposition to this "update" of the language.

Geist doesn't think much of Dechert's statement.

In other words, Dechert is suggesting that accessing a neighbour's cable or wireless Internet access might somehow be linked to planning a terrorist attack, sending child pornography, or engaging in cyberbullying. I would happy to think about the potential for cable theft to play a role in terrorist plots. In fact, I think most would agree that there is no likelihood whatsoever and that the government should stop trying link provisions in their "cyberbullying bill" that have nothing to do with cyberbullying.

The odds, as Geist points out, are almost nonexistent. But very slim odds are a legislator's best friend. No one wants to be caught out by the unexpected, especially when they had a chance to head it off back when the bill was being written. So, a lot of "just in case" rhetoric is deployed, accompanied by fearful projections.

If this line of reasoning is allowed to proceed, Canadians could be looking at the possibility of legal penalties for running unsecured WiFi connections. It seems implausible, but this has been witnessed before. Back in 2010, a German court stated that those running open WiFi connections could be fined for not securing their networks (thus "enabling" illegal activity). Copyright maximalists have made the argument several times that an open WiFi connection is "negligent." When the realization sinks in that it's easier to target the listed subscriber rather than find out who exactly was performing criminal activities on an open WiFi connection, you can be sure that the solution will be routed along the path of least resistance: holding the subscriber responsible for the actions of others.

And, as Geist points out, the mission creep in this bill is astounding. What was meant to target cyberbullies has instead become a playground for legislators. A nearly non-existent threat is being used to beef up the penalties for cable theft, as though that part of the equation were the greatest deterrent to illegal activities. It's also concerning that the additional powers being granted to law enforcement outside of the cyberbullying scope were omitted from the government's official "introduction" to the bill (posted without the bill's text). This omission seems to indicate that the crowd-pleasing "cyberbullying" angle will allow legislators to copy-and-paste whole sections from a previously unsuccessful "lawful access" bill, itself defended with cries of "child pornography."

Filed Under: bob dechert, canada, child porn, cyberbullying, mission creep, open wifi, politics, terrorism

Canadian Government Rolls Out National Cyberbullying Legislation And, No Surprise, It's Problematic

from the when-all-you-have-is-legislators... dept

The legislative attempts to curb cyberbullying continue to amass. We've already seen Nova Scotia's regrettable offering -- a law that includes ex parte "hearings" attended by only the accuser and a judge, and the addition of criminal and civil liability which extends to the parents of the accused. We've seen other similar efforts here in the US, most of which have been rushed through the process while emotions are still high. The end result is a set of bad laws that criminalizes protected speech and removes objectivity from the process.

Canada is now in the process of pushing through a national cyberbullying law, one that adds "revenge porn" to the mix.

The Honourable Peter MacKay, P.C., Q.C., M.P. for Central Nova, Minister of Justice and Attorney General of Canada, today introduced legislation to address criminal behaviour associated with cyberbullying. This legislation demonstrates the Government's firm commitment to ensuring that Canadians are better protected against online exploitation.

"Our Government is committed to ensuring that our children are safe from online predators and from online exploitation. We have an obligation to help put an end to harmful online harassment and exploitation. Cyberbullying goes far beyond schoolyard bullying and, in some cases, can cross the line into criminal activity," said Minister Mackay. "With the click of a computer mouse, a person can be victimized before the entire world. As we have seen far too often, such conduct can destroy lives. It clearly demands a stronger criminal justice response, and we intend to provide one."

This legislative attempt was prompted by two high-profile suicides of bullied teens -- Rataeh Parsons and Amanda Todd -- both of whom also had explicit photos of them distributed online.

The bill itself (the Protecting Canadians from Online Crime Act) hasn't been posted online yet, but many of the changes the legislation hopes to make have been detailed at the Canadian Department of Justice site. In addition, the report [embedded below] leading to this legislation is also available, which contains several recommendations for altering existing laws and crafting new ones.

Here are some of the key changes the legislation hopes to implement if passed.

• Create a new offence to prohibit the non-consensual distribution of intimate images – punishable by a maximum penalty of five years' imprisonment on indictment or six months' imprisonment on summary conviction;
• Direct the sentencing judge to consider whether or not a person convicted of the new offence should be subject to a prohibition order that would restrict his or her use of the Internet for a specified period;
• Authorize a judge to order the removal of an intimate image from websites if the person depicted did not consent to having the image posted;
• Allow a judge to order restitution following a conviction to enable the victim to recoup expenses involved in having the images removed from the Internet or social media;
• Empower the court to seize and order the forfeiture of property related to the offence, such as computers and mobile devices;
• Specify that a justice may issue a recognizance order (peace bond) where there are reasonable grounds to believe an individual will commit the new offence; and
• Ensure that the spouse of an accused person is eligible to testify against the accused in court.

Canada isn't exactly the US when it comes to protected speech, so it will be interesting to see how this attempt at curbing "revenge porn" plays out. Beyond that, there are a couple of troubling additions to existing law that could result in lots of unintended consequences.

There's plenty of potential for abuse in allowing courts to order an image to be removed. One needs to look no further than Europe to see how problematic this can be. Images that aren't "revenge porn" but are embarrassing can be taken down with a court order, meaning that people will be able to bury unflattering photos. The fact that this is wrapped in with a cyberbullying law means this likely won't be strictly limited to photos. "Offensive" text may also fall under the same law.

More troubling is the fact that the law seeks to allow courts to go into the asset forfeiture business. There are hundreds of examples here in the US that show just how perverted that incentive is. The War on Drugs has seen citizens lose houses, vehicles and cash to law enforcement for things as minor as finding a personal supply of marijuana. Even worse, people pulled over carrying amounts of cash that officers find "suspicious" often find their money seized under the presumption that only drug dealers carry lots of cash. No legislative body should be in any hurry to unleash this sort of easily-exploited "deterrent" on its own citizens.

The addition of granting spouses the "eligibility" to testify against each other in court is an interesting twist, presumably aimed at combating revenge porn. At this point, Canadian law still considers married partners to be "one person," which means neither can be compelled to testify against each other. This would eliminate that "protection" (if that's indeed what it is) and doesn't seem to be limited solely to revenge porn cases. This would seem to open itself up for abuse as well and, if passed, Canadians may see police paying more and more attention to the spouses of suspects.

The legislation also seeks to modernize existing criminal code to be more applicable to current realities. This too has some problematic aspects.

• Provide for preservation of volatile computer data;
• Require judicial authority to acquire preserved computer data, and require the deletion of such data when it is no longer needed;
• Update production orders and warrants to make them more responsive and appropriate for today's advanced telecommunications environment;
• Give the police better tools to track and trace telecommunications to determine their origin or destination; and
• Streamline the process for obtaining multiple warrants and orders that are related to the execution of a wiretap authorization.

It's the last bullet point that's the most worrying. Streamlining processes like these almost always results in an escalating disregard for civil liberties and privacy protections. This is another area where governments should tread carefully, or better yet, not at all. Modernizing isn't simply "streamlining." Modernizing also means carefully considering the unintended consequences of applying "streamlined" procedures to a heavily-connected public. Modernizing laws, done the wrong way, simply grants more access to law enforcement without considering the additional privacy protections that may need to be built in.

Legislators (and courts) also need to be especially wary of how the law will be interpreted by those enforcing it. Most likely, new permissions will be bent to give law enforcement the "edge" it always seems to feel it needs. Again, we don't need to look any further than the US to see how selective "modernization" can be. If a judge said back in 1993 that it was fine for officers to open a flip phone and scroll through the address book without a warrant, law enforcement takes that to mean it can browse the contents of a modern smartphone (which is analogous to raiding someone's computer) without a warrant in 2013.

Pre-greasing the wiretap wheels is never a good idea. We have an entire intelligence network predicated on streamlined, bulk collections that arose out of generous interpretations of existing surveillance laws.

The bullet points alone indicate this legislation has a lot more bad in it than good. In the search for applicable deterrents to fight a nebulous problem, the bill's drafters have erred on the side of smothering speech under a heavy blanket of good intentions.

Filed Under: canada, cyberbullying

Charges Dropped On Both Students Charged In Connection With Classmate's Suicide

from the this-is-what-happens-when-actions-are-dictated-by-emotions dept

The two students arrested and charged with "felony aggravated stalking" by Polk County (FL) sheriff Grady Judd for allegedly participating in the bullying of a classmate who committed suicide have now had all charges brought against them dropped.

All charges against one of the girls accused of cyberbullying Rebecca Sedwick, the Lakeland girl who committed suicide, will be dropped, according to attorney Jose Baez.

Baez represents the 12-year-old girl.

"They dropped these charges because they simply didn't have the evidence, and they felt it was the right thing to do," said Baez.

The lawyer for a 14-year-old girl charged in the case says it is her understanding that charges against her client will also be dropped.

The state Attorney General hasn't given an official comment on the status of these cases as they're still pending, but Grady Judd seemed to confirm this was the case in a statement he made to the media.

Polk County Sheriff Grady Judd held a news conference to discuss the latest developments and said the outcome of the case was a success.

"Our goal was to create an intervention," he said. "Our goal was to bring this conduct to the proper authorities..."

Both girls are now receiving services and counseling. The 12-year-old's lawyer bashed the Sheriff for his actions, saying Judd "wanted to be a TV star" and was using his position as a "pulpit."

Baez's statements aren't exaggerations. Judd has leveraged his position as Polk County Sheriff into a countrywide child porn sting operation.

As sheriff, backed by a like-minded State Attorney's Office, Judd has made the signature of his administration child porn stings, Craigslist prostitution stings and so-called cyberstings modeled after NBC's To Catch a Predator. His undercover detectives pose online as teen girls to let men talk dirty to them. He arrested a swim coach from North Carolina. He arrested a man from Orlando who earlier had been called a hero for rescuing people from a plane crash. He arrested in Maryland a 57-year-old deputy press secretary for the Department of Homeland Security.

Almost all these men live somewhere else. Judd brings them to Polk County.

Apparently, no matter where you live and what local laws you haven't violated, if moved to do so, Sheriff Judd will send his officers after you and haul you back to Florida to be judged by his rules.

A man in Colorado a couple of months ago published a book called The Pedophile's Guide to Love and Pleasure, and he didn't get arrested for it, and this made Grady Judd mad.

So the sheriff of Polk County, whose job is to protect and serve the roughly 500,000 people who live in the mostly agricultural area between Tampa and Orlando, had one of his undercover detectives contact Phillip Greaves of Pueblo, Colo., and ask to buy his book. Greaves sent a signed copy back to Polk, where Judd got a search warrant, and then sent two of his men 1,856 miles to arrest him the week before Christmas.

While some may argue that all's fair in the war on child porn, there are indications that Judd's idea of what is or isn't criminally obscene may be very skewed.

In 2007, commenting on a case in which he had arrested a man who was running a porn site out of his home in Polk, he said: "No normal person could even imagine what's depicted in those videos and in those photographs." A sexual behavior expert from the University of Central Florida said in a motion in the man's court file that it was run-of-the-mill erotica available anywhere on the Internet to anyone.

Judd's subjective morality may be what pushed him to pursue felony charges against two students, especially when he himself made statements that suggested their actions may have only played a small part (if any) in Rebecca Sedwick's decision to kill herself.

According to Judd, bullying "only contributed" to the death of Rebecca Sedwick, who died last month after jumping from a tower at an abandoned cement plant near her home…

Judd told CBS News' Crimesider that he charged the girls with stalking because what they did to Sedwick went beyond bullying into harassment and intimidation, but he also said that Sedwick had problems at home that may have contributed to her state of mind on the day of her death. According to Judd, Sedwick slept not on a bed at home, but in a recliner. Her sister, said Judd, slept on the couch, and the girls' clothes were kept in "grocery sacks" in the living room.

Sedwick's mother, Tricia Norman, has been in trouble with the law since at least 1995, when she was charged with multiple counts of writing bad checks, according to Polk County records. In 2005, she was again charged with writing bad checks, as well as fraud and probation violation. The records reveal that Norman apparently has several aliases, including Tricia Craig, Tricia Howard and Tricia Jones.

While this look into Sedwick's home life may have contributed to the charges being dropped, it apparently didn't factor into Judd's decision to charge the two youths. If nothing else, his surprising move to arrest the two students garnered him the attention he seems to thrive on.

Judd says he has received overwhelmingly positive feedback from his community - and people as far away as Hawaii and Alaska - for his decision to charge the girls for their alleged bullying.

Then there's this quote from a local police chief and former co-worker of Judd's.

"I kid him: 'The most dangerous place in Polk County is to get between you and a TV camera.' He just laughs. But he's worked the media very well. It's going to keep him elected. "

While many people would like to see bullies punished for their actions, letting a publicity-hungry Sheriff who has a track record of moralizing on a national scale from his Florida office use an emotionally-charged issue as a personal chew toy is a terrible idea.

Filed Under: bullying, cyberbullying, grady judd, grandstanding, rebecca sedwick

Lawyer Wants New Law To Hold Parents Criminally Liable For Their Kids' 'Cyberbullying'

from the another-tragedy-and-another-misguided-crusade dept

Lakeland, Florida has yet to erect any cyberbullying laws in the wake of a 12-years-old student's suicide, setting it apart from many other locales which have reacted badly to tragedies by rushing out overly broad and under-thought legislation. Of course, this plus is somewhat mitigated by the fact that Polk County Sheriff Grady Judd has pretty much turned his office into a vigilante squad after declaring his "zero tolerance" (and made up just right now) policy against cyberbullying.

Judd arrested 14-year-old Guadalupe Shaw for a Facebook post in which she acknowledged bullying Rebecca Sedwick and noted she "didn't give a fuck" that the 12-year-old had killed herself. Judd charged Shaw with aggravated stalking. Not content with that, Judd tasked his investigators with finding something he could charge Shaw's parents with because he was unimpressed with Shaw's unrepentant attitude and her parents' failure to "smash" Shaw's computer into "thousands of pieces" after they found out about her activities.

Lucky for Judd, investigators found something, although that "something" isn't entirely related to Shaw's alleged bullying of Sedwick.

An outspoken Florida sheriff who arrested a 14-year-old girl for cyber-bullying after a younger schoolmate killed herself has filed child abuse charges against her mother, over an unrelated incident.

Polk County sheriff Grady Judd said Vivien Lee Vosburg, 30, punched and shouted obscenities at several children in her care in a violent incident in June that was captured on video [which can be viewed here] and later posted to Facebook by one of the children.

Judd has held Shaw's mother, Vivian Lee Vosburg, on child abuse charges. Meanwhile, Shaw has been released pending a court appearance. Not exactly what Judd was looking for when he first stated his desire to charge Shaw's parents for contributing (I guess) to the bullying of Rebecca Sedwick, but it seems to fit the narrative he's portraying.

"This clearly indicates to us that this appears to be a normal way of life," said Judd, who has declared a "zero tolerance" approach to cyber-bullying in his county. "They're laughing and cussing and throwing the F-bomb around, then they're posting that conduct for all to see. It is clear not only has Vosburg demonstrated she cannot control the behaviour of children she has access to without using violence, but she is obviously not monitoring the social media sites of children she has access to either.

"I'm astounded by this conduct, I'm astounded that it was posted and then I'm even more astounded that it stayed there."

Of Guadalupe Shaw, Judd said: "The apple doesn't fall far from the tree."

Judd's getting what he wants: a chance to prosecute parents for a child's behavior, all of which is punishment for another child's suicide. But so far, he and his "zero tolerance" have been limited to existing laws. Unfortunately, someone wants to change that, and that someone is none other than George Zimmerman's defense attorney, Mark O'Mara.

Florida attorney Mark O'Mara is stepping onto center stage in the debate over how much parents should be held responsible for children’s cyberbullying. He plans to draft legislation to impose criminal liability on parents who show "willful blindness or gross negligence" to the kind of online torment allegedly inflicted on Rebecca Sedwick, for which two girls were recently arrested.

"If a child kills someone while operating a parent’s car, the parents can be held responsible. If a child kills someone while using a parent's gun, the parent can be held responsible. If a child breaks the law using a computer or cellphone provided by the parent, how is that different?" wrote Mr. O'Mara, who served as defense attorney for George Zimmerman in this year's Trayvon Martin murder trial, in his "O'Mara Law Blog" on Thursday.

O'Mara's terrible idea looks to do more damage than Sheriff Judd's new found interest in zero tolerance policing of cyberbullies. O'Mara's proposal aims to do what Nova Scotia's atrociously bad cyberbullying law does: hold parents responsible for their children's actions. While O'Mara may have point about legal adults having been historically held responsible for certain illegal acts utilizing property owned by parents, this is breaking new ground.

For one thing, while Nova Scotia's law has the (to date untested) potential to hold parents civilly liable for their children's online bullying actions, O'Mara's draft legislation would hold parents criminally liable, a much more negative potential outcome. The attorney believes the law is needed because (in his opinion) parents have become too lax in monitoring and controlling their children's online activities.

O'Mara acknowledged in his blog that "there are substantial obstacles in the way of passing such legislation," but he said, "If parents won't adopt that responsibility, we need to hold their feet to the fire and insist they share liability, especially when their children's actions have life or death consequences."

If O'Mara's legislation is combined with the worst aspects of Nova Scotia's law (purely subjective "standard" for what can be termed "bullying," the entire process is ex parte -- no input from the accused during any step of the process), Floridians are going to have a new nightmare on their hands. Laws like this chill speech by holding normally protected expression to broadly restrictive standards. But all of this is what's come to be expected when people with the power to push legislation and deploy investigators decide to turn a tragedy into a crusade.

Filed Under: cyberbullying, grady judd, guadalupe shaw, liability, mark o'mara, parents, rebecca sedwick, vivan lee vosburg, zero tolerance

Sheriff Determined To Find Some Reason To Arrest Parents Of Girls Who Are Accused Of Bullying Girl Into Suicide

from the that's-not-the-way-'justice'-works dept

We recently covered the arrest of two students for their connection to a bullied girl's suicide. I noted at the time that, while certainly not perfect, at least the two were charged with violating laws already on the books, rather than a newly-crafted (and, most likely, badly written) cyberbullying law.

Whatever sense of relief I may have had then has been completely wiped away by Sheriff Grady Judd's continuing comments. If there's going to be a rational resolution to this, Grady can't be involved. He's swiftly turning this into a crusade, which is exactly the wrong thing to do.

The Florida sheriff investigating a girl's suicide allegedly prompted by online bullying said he's considering charging the parents of one of the two girls arrested in the case because they're in "total denial."

Polk Country Sheriff Grady Judd told Fox News Thursday that if evidence indicates the parents of one of the two girls knowingly allowed the girl to post the bullying comments online, they could be charged with contributing to the dependency or delinquency of a child.

It's not enough for Judd to have arrested two students. Now, he's seeking to extract some sort of vengeance for a perceived "lack of remorse" on the part of Guadalupe Shaw, the 14-year-old arrestee, even if it means stretching the law so he can go after her parents. In Judd's mind, they're "in denial."

Shaw's parents have maintained their daughter's account was hacked and that she never made the posts that got her arrested. They also claim to check in on Shaw's account "daily." Whether or not any of those claims are true (or at least should be subject to an investigation before making very public claims) apparently doesn't matter to Judd, who has his own opinion on how Shaw's parents should have handled things after being informed of their daughter's posts.

"You tell me that there's not parents, who instead of taking that device and smashing it into a 1,000 pieces in front of her child, says, 'Oh, her account was hacked?' We see where the problem is."

Judd says "we," but he's likely on his own. This is no longer a case he should be in charge of. He's made it personal and is drifting dangerously close to turning this into a vendetta. And, again, he's doing this solely because in his opinion, Guadalupe Shaw isn't showing enough remorse for her actions.

"We knew that there was total disregard for life, and if she would say those things after she bullied Rebecca and after the parents knew that, we had to act more quickly," Sheriff Grady Judd, from Polk County, Fla., told "Fox and Friends" Wednesday morning.

Judd is pursuing vigilante justice under the color of law. Further comments made elsewhere show he's grasping at straws to make someone pay.

"They don't think there is a problem here, and that is the problem," he said. Judd added that the girl's parents gave her back her Facebook access even after learning about her alleged bullying of Rebecca. "That's terrible," he said. "That's why we moved fast to lock their daughter up."

"I'm aggravated that the parents aren't doing what parents should do," Judd told reporters. "Responsible parents take disciplinary action."

The investigators working for him can't be happy with Judd's crusade. They haven't found anything they can charge the parents with, but it's pretty clear Judd won't be taking no for an answer.

Judd told NBC's Today on Wednesday that investigators so far have found no criminal charges that could be filed against the parents, "but if we can find contributing to the delinquency of a child, we would certainly bring that charge."

Bringing charges against someone for "contributing" to another person's suicide is problematic and it's an area someone like Judd shouldn't be so willing to wander into using only his perceptions of other's attitudes and thoughts to guide him. Grasping about for charges to file against Shaw's parents, who are even further removed from Sedwick's suicide than their daughter, is a dangerously desperate act.

If he manages to follow through and successfully have both Shaw and her parents prosecuted, he won't set any legal precedents, but he will set a low bar for future arrests. With Judd around, no one in his county will need a new cyberbullying law to abuse because the sheriff is perfectly capable of abusing the laws he already has.

Filed Under: blame, cyberbullying, grady judd, guadalupe shaw, suicide, vendetta

Two Florida Students Charged In Connection With A Bullied 12-Year-Old's Suicide

from the and-the-problem-with-existing-laws-is-what? dept

Two alleged cyberbullies have been arrested in Florida, but not because as a result of hastily erected cyberbullying laws. Not that Lakeland could have been blamed for rushing some legislation into existence.

Twelve-year-old Rebecca Sedwick jumped off a tower at an abandoned cement plant after enduring months of bullying by 15 other teens and tweens. Another student, 14-year-old Guadalupe Shaw, posted this message on Facebook shortly after Sedwick's suicide.

Yes ik [I know] I bullied Rebecca nd she killed her self but IDGAF [I don't give a (expletive)].

On the strength of that post, Shaw was arrested and is facing charges for "felony aggravated stalking." Another unnamed 12-year-old was picked up and is facing the same charge.

Officials have presumably secured previous posts from the two arrestees aimed at Sedwick that justify the felony charges. This message alone would not qualify as a felony or misdemeanor.

(2) A person who willfully, maliciously, and repeatedly follows, harasses, or cyberstalks another person commits the offense of stalking, a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

(3) A person who willfully, maliciously, and repeatedly follows, harasses, or cyberstalks another person and makes a credible threat to that person commits the offense of aggravated stalking, a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

The difference between the two is the existence of a "credible threat." Messages sent to Sedwick from other students included phrases like, "You should die" and "Why don't you go kill yourself," including some sent by Shaw herself.

Witnesses told investigators that Shaw harassed Sedwick by calling her ugly, told her to "drink bleach and die," and suggested that she should kill herself.

Prosecutors hoping to make these charges stick may have trouble turning suggestions into threats, but as stated earlier, there may be more posts that haven't been made public that are actual threats. Even so, the felony charge is Class 3, one step up from a misdemeanor.

Grady Judd, the sheriff whose office performed the arrest, said Shaw brought this on herself.

"She forced this arrest," Judd said of the 14-year-old's alleged decision to post the message. He said investigators don't believe her Facebook account was compromised.

Judd sent detectives to arrest her and a 12-year-old friend at their homes.

They were booked Monday, and the 12-year-old was released to her parents, Judd said.

The 14-year-old made her first court appearance Tuesday and was being kept at a juvenile detention facility.

The comment about Shaw's account being "compromised" is a response to Shaw's parents' claim (and Shaw's herself) that their child's Facebook account was hacked.

But Shaw's parents told ABC News Tuesday that they regularly look at their daughter's account — and would never allow her to write anything so vile."I would check her Facebook every time she would get on it," said Shaw's mom, who wasn't identified.

"If we saw something that was not right, we would've addressed it and it would've ended right then," her dad added.

Shaw’s attorney also said the girl denies stalking Sedwick, a former classmate at Crystal Lake Middle School in Lakeland, and isn’t responsible for the online message.

So, there's that. The claim seems to be a bit unlikely, especially if investigators have collected posts made from the account over a lengthy time period. Even if Shaw didn't make the post that resulted in her arrest, it's going to be a stretch to assert that all negative posts directed at Sedwick from her account were a result of hacking. The latest post was the trigger for law enforcement, but the aggravated stalking charge relates to "repeated" actions. Even so, it's still an obstacle prosecutors will need to surmount.

That the teens are being charged under existing law indicates the "need" for separate cyberbullying laws is overstated. Existing statutes are capable of addressing the most harmful bullying behavior. Cyberbullying laws, at least to date, have tended to replace targeting clearly criminal behavior with targeting unpleasant behavior, not all of which is bullying and very much of which is protected expression.

That the outcome of this will be unsatisfactory for those seeking justice for Sedwick's suicide (most likely no time served for either arrestee) doesn't prove the existing laws don't go far enough. As tragic as Sedwick's suicide was, and as reprehensible as the behavior was that led to it, attempting to prosecute people for someone else's choice is a problematic area that no legislator should be willing to rush into. But so many have, applying heated emotions to a process that tends to result in many harmful unintended consequences if not dealt with rationally.

Filed Under: charges, cyberbullying, florida, guadalupe shaw, rebecca sedwick, stalking, suicide