New Texas Abortion Law Likely To Unleash A Torrent Of Lawsuits Against Online Education, Advocacy And Other Speech

from the though-230-will-help dept

In addition to the drastic restrictions it places on a woman’s reproductive and medical care rights, the new Texas abortion law, SB8, will have devastating effects on online speech. 

The law creates a cadre of bounty hunters who can use the courts to punish and silence anyone whose online advocacy, education, and other speech about abortion draws their ire. It will undoubtedly lead to a torrent of private lawsuits against online speakers who publish information about abortion rights and access in Texas, with little regard for the merits of those lawsuits or the First Amendment protections accorded to the speech. Individuals and organizations providing basic educational resources, sharing information, identifying locations of clinics, arranging rides and escorts, fundraising to support reproductive rights, or simply encouraging women to consider all their options now have to consider the risk that they might be sued for merely speaking. The result will be a chilling effect on speech and a litigation cudgel that will be used to silence those who seek to give women truthful information about their reproductive options. 

SB8, also known as the Texas Heartbeat Act, encourages private persons to file lawsuits against anyone who “knowingly engages in conduct that aids or abets the performance or inducement of an abortion.” It doesn’t matter whether that person “knew or should have known that the abortion would be performed or induced in violation of the law,” that is, the law’s new and broadly expansive definition of illegal abortion. And you can be liable even if you simply intend to help, regardless, apparently, of whether an illegal abortion actually resulted from your assistance.

And although you may defend a lawsuit if you believed the doctor performing the abortion complied with the law, it is really hard to do so. You must prove that you conducted a “reasonable investigation,” and as a result “reasonably believed” that the doctor was following the law. That’s a lot to do before you simply post something to the internet, and of course you will probably have to hire a lawyer to help you do it.

SB8 is a “bounty law”: it doesn’t just allow these lawsuits, it provides a significant financial incentive to file them. It guarantees that a person who files and wins such a lawsuit will receive at least $10,000 for each abortion that the speech “aided or abetted,” plus their costs and attorney’s fees. At the same time, SB8 may often shield these bounty hunters from having to pay the defendant’s legal costs should they lose. This removes a key financial disincentive they might have had against bringing meritless lawsuits. 

Moreover, lawsuits may be filed up to six years after the purported “aiding and abetting” occurred. And the law allows for retroactive liability: you can be liable even if your “aiding and abetting” conduct was legal when you did it, if a later court decision changes the rules. Together this creates a ticking time bomb for anyone who dares to say anything that educates the public about, or even discusses, abortion online.

Given this legal structure, and the law’s vast application, there is no doubt that we will quickly see the emergence of anti-choice trolls: lawyers and plaintiffs dedicated to using the courts to extort money from a wide variety of speakers supporting reproductive rights.

And unfortunately, it’s not clear when speech encouraging someone to or instructing them how to commit a crime rises to the level of “aiding and abetting” unprotected by the First Amendment. Under the leading case on the issue, it is a fact-intensive analysis, which means that defending the case on First amendment grounds may be arduous and expensive. 

The result of all of this is the classic chilling effect: many would-be speakers will choose not to speak at all for fear of having to defend even the meritless lawsuits that SB8 encourages. And many speakers will choose to take down their speech if merely threatened with a lawsuit, rather than risk the law’s penalties if they lose or take on the burdens of a fact-intensive case even if they were likely to win it. 

The law does include an empty clause providing that it may not be “construed to impose liability on any speech or conduct protected by the First Amendment of the United States Constitution, as made applicable to the states through the United States Supreme Court’s interpretation of the Fourteenth Amendment of the United States Constitution.” While that sounds nice, it offers no real protection—you can already raise the First Amendment in any case, and you don’t need the Texas legislature to give you permission. Rather, that clause is included to try to insulate the law from a facial First Amendment challenge—a challenge to the mere existence of the law rather than its use against a specific person. In other words, the drafters are hoping to ensure that, even if the law is unconstitutional—which it is—each individual plaintiff will have to raise the First Amendment issues on their own, and bear the exorbitant costs—both financial and otherwise—of having to defend the lawsuit in the first place.

One existing free speech bulwark—47 U.S.C. § 230 (“Section 230”)—will provide some protection here, at least for the online intermediaries upon which many speakers depend. Section 230 immunizes online intermediaries from state law liability arising from the speech of their users, so it provides a way for online platforms and other services to get early dismissals of lawsuits against them based on their hosting of user speech. So although a user will still have to fully defend a lawsuit arising, for example, from posting clinic hours online, the platform they used to share that information will not. That is important, because without that protection, many platforms would preemptively take down abortion-related speech for fear of having to defend these lawsuits themselves. As a result, even a strong-willed abortion advocate willing to risk the burdens of litigation in order to defend their right to speak will find their speech limited if weak-kneed platforms refuse to publish it. This is exactly the way Section 230 is designed to work: to reduce the likelihood that platforms will censor in order to protect themselves from legal liability, and to enable speakers to make their own decisions about what to say and what risks to bear with their speech. 

But a powerful and dangerous chilling effect remains for users. Texas’s anti-abortion law is an attack on many fundamental rights, including the First Amendment rights to advocate for abortion rights, to provide basic educational information, and to counsel those considering reproductive decisions. We will keep a close eye on the lawsuits the law spurs and the chilling effects that accompany them. If you experience such censorship, please contact info@eff.org.

Originally published to the EFF Deeplinks blog.

Filed Under: abortion, advocacy, aiding and abetting, free speech, sb8, snitch, texas

Rupert Murdoch Learns Why Intermediary Liability Protections Matter: Australia Says Media Orgs Can Be Sued Over Facebook Comments

from the it's-like-a-petry-dish-of-dumb-internet-policy dept

Ah, Australia. The country down under has always taken an upside down view on intermediary liability laws -- quite quick to blame an intermediary for 3rd party content. Two years ago we wrote about a problematic ruling in Australia based on the idea that media companies (not just social media companies) could be held liable for comments on Facebook about their stories. Any common sense thinking would immediately reveal how ridiculous this is: how can a media company be held liable for someone else's comments on someone else's website? Well, the judge noted, because they could hack Facebook and insert a filter to block comments on their stories with the 100 most common English words, as a form of pre-vetting every comment. I'm not kidding:

The judge wrote that each company had the power to effectively delay reader comments on Facebook and monitor if they were defamatory before "releasing" them to the audience.

This was based on evidence from social media expert Ryan Shelley, who testified that although you can't turn off comments on Facebook posts, you can deploy a "hack" to pre-moderate them.

Shelley's hack involves putting 100 of the most commonly used words in the English language ("a", "the", etc) on a Facebook filter list, causing any comment containing those words to be automatically hidden from the public.

That ruling was appealed and Australia's High Court has... incredibly (though not surprisingly, given the country's other rulings on intermediary liability) upheld the ruling. Indeed, it points to earlier ridiculous rulings to say that, in Australia, it doesn't matter if the publisher's intention was not to publish anything defamatory. Instead, it says that if you are tangentially connected to a defamatory publication, you're liable:

... a person who has been instrumental in, or contributes to any extent to, the publication of defamatory matter is a publisher. All that is required is a voluntary act of participation in its communication.

This is, basically, the anti-230. It says if you have any role in publishing defamatory information, you can be treated as the publisher.

The media organizations involved in the lawsuit pointed out that there is an "innocent dissemination" defense (defence down under) for distributors (a form of distributor liability), but the court doesn't think that really exists, and literally mocks the decisions where it was found to exist.

The defence cannot be said to be rooted in principle. In Thompson v Australian Capital Television Pty Ltd[44], its origins were described as "muddied". The decision in Emmens v Pottle has been described as more pragmatic than principled[45]. Lord Esher appears to have been motivated by a concern that the common law would appear to be unjust and unreasonable if some such accommodation was not made by the courts. In Thompson[46], it was said that his Lordship "rationalised rather than explained the decision".

And thus the end result is liability for absolutely everyone.

The Court of Appeal was correct to hold that the acts of the appellants in facilitating, encouraging and thereby assisting the posting of comments by the third-party Facebook users rendered them publishers of those comments.

A separate concurrence was even more ridiculous:

Each appellant became a publisher of each comment posted on its public Facebook page by a Facebook user as and when that comment was accessed in a comprehensible form by another Facebook user. Each appellant became a publisher at that time by reason of its intentional participation in the process by which the posted comment had become available to be accessed by the other Facebook user. In each case, the intentional participation in that process was sufficiently constituted by the appellant, having contracted with Facebook for the creation and ongoing provision of its public Facebook page, posting content on the page the effect of which was automatically to give Facebook users the option (in addition to "Like" or "Share") to "Comment" on the content by posting a comment which (if not "filtered" so as to be automatically "hidden" if it contained "moderated words") was automatically accessible in a comprehensible form by other Facebook users.

The whole thing just seems fundamentally ridiculous -- and a huge attack on speech. However, it's also a very clear lesson in why intermediary liability protections like Section 230 are so important. As Australian law professor David Rolph wrote in response to the ruling, there's a high likelihood that media organizations will end up shutting down their Facebook pages, and cutting off user comments because of this:

Today’s ruling may inspire many social media account managers to make greater use of these features and tightly restrict comments — or, where possible, switch them off completely.

In other words -- as we've said repeatedly over the years -- Section 230 protects free speech by making it possible for websites to host user comments in the first place. Without those protections, you get fewer places to speak. Unfortunately, this ruling fits with the trend we've seen elsewhere, such as the Defli decision in the European Court of Human Rights that held a publication liable for user comments.

Of course, the real irony here is that Rupert Murdoch still owns a ton of news organizations in Australia impacted by this decision. Indeed, the person who originally brought the lawsuit wants to sue a bunch of media companies for (allegedly) defamatory comments on Facebook... including the Murdoch-owned Sky News Australia.

And yet, over the last few years, Rupert Murdoch has been one of the most aggressive anti-Section 230 advocates around, and has had Fox News and the WSJ editorial page run all sorts of attacks on Section 230, and pushed for the government to undermine those protections. Yet now, down in his home country, he may face massive legal liability under the kind of regime he's pushing for in the US.

There have been so many debates about intermediary liability and Section 230, but now Australia is really turning into a petri dish example of what happens when you have the exact opposite views on intermediary liability.

Filed Under: australia, comments, defamation, free speech, intermediary liability, news organizations, rupert murdoch, social media

Will COVID Become Australia's 9/11?

from the trading-away-the-liberties-of-others-for-temporary-safety dept

Civil liberties in Australia are on the verge of extinction, thanks to the government's response to the COVID crisis. What has been heralded as a triumph of science and quick responses has drifted towards something far more totalitarian that imposes its will on the country's citizens, restricting them from living their lives, much less enjoying supposedly guaranteed liberties.

Change has been a constant in response to this pandemic. But in countries considered to be part of the "free world," some balancing has been put in place to contain the spread of the virus while preventing citizens from being subjected to extreme measures usually only deployed by dictators.

Australia has proven particularly resilient. But while people here in the US have entertained thoughts of kidnapping governors in response to minimal restrictions on social interactions and shopping, the residents of Australia have endured severe restrictions that seemingly only get more severe as time goes on.

This is the exchange of liberty for safety -- an exchange that's been made involuntary by government officials. The arrival of the Delta variant has again complicated matters. And already severe restrictions are becoming draconian, thanks to the government of Australia believing there's no involuntary sacrifice residents won't make to keep COVID infections to a minimum

Conor Friedersdorf has compiled a compendium of Australia's latest COVID prevention efforts -- many of which haven't been seen in countries that aren't being run by Supreme Leaders or Presidents-for-life.

“Australia’s borders are currently closed and international travel from Australia remains strictly controlled to help prevent the spread of COVID-19,” a government website declares. “International travel from Australia is only available if you are exempt or you have been granted an individual exemption.” The rule is enforced despite assurances on another government website, dedicated to setting forth Australia’s human-rights-treaty obligations, that the freedom to leave a country “cannot be made dependent on establishing a purpose or reason for leaving.”

Australian courts have, so far, sided with the government and its increasing encroachment on civil liberties and personal freedoms. They have found that the government's needs outweigh the complaints of the governed in these COVID times, under the assumption these extreme measures are not only justified, but temporary.

But it's not just travel in and out of Australia that has been restricted. Travel within the country has been affected by COVID policies, turning a cohesive nation of states into separate territories whose boundaries are enforced with "papers, please" demands from people trying to do nothing more than move freely within the borders of their homeland.

Moving around one's own city or town is being restricted as well, enforced by a government-owned-and-operated app.

[T]he government of South Australia, one of the country’s six states, developed and is now testing an app as Orwellian as any in the free world to enforce its quarantine rules. Returning travelers quarantining at home will be forced to download an app that combines facial recognition and geolocation. The state will text them at random times, and thereafter they will have 15 minutes to take a picture of their face in the location where they are supposed to be. Should they fail, the local police department will be sent to follow up in person.

While not technically a crime, the involvement of law enforcement makes existing within the confines of a single town -- but not abiding by quarantine requirements -- something indistinguishable from criminal activity. It's not just law enforcement in the mix in Australia, though. It's also the military, which has been sent to places the government feels contains too many citizens unwilling to stay under the government's thumb.

Australia has deployed hundreds of soldiers to Sydney to help enforce a Covid lockdown.

A Delta outbreak which began in June has produced nearly 3,000 infections and led to nine deaths.

Australian Defence Force soldiers will undergo training on the weekend before beginning unarmed patrols on Monday.

In COVID-era Australia, those who refuse to respect the constantly shifting, tending-towards-totalitarianism policies will be greeted with a show of (possibly unarmed) force by local cops and the government's military.

Soldiers will join police in virus hotspots to ensure people are following the rules, which include a 10km (6.2 miles) travel limit.

State Police Minister David Elliott said it would help because a small minority of Sydneysiders thought "the rules didn't apply to them".

All of this is already concerning. But beneath the policies imposed out of supposed concern for the public's safety runs an unhealthy undercurrent. Once countries put drastic measures in place in response to unexpected threats to public wellbeing, they're rarely eager to roll them back once the crisis has passed, or even lessened.

What remains to be seen is whether Australia can maintain that performance without permanently ending core attributes of life in a liberal democracy, including freedom of movement, peaceable assembly, and basic privacy.

If the government likes its new powers, and its ability to keep its citizens contained, it may decide the crisis has no definite end in sight. And with the virus continuing to mutate (as all viruses do), these severe, but temporary, precautions and restrictions may become permanent -- allies in the government's never-ending War on COVID.

Filed Under: australia, civil liberties, covid, quarantine, surveillance

Daily Deal: The 2021 Google Software Engineering Manager Bundle

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

The 2021 Google Software Engineering Manager Bundle has 12 courses to help you learn software development. You'll learn about Data Science, Python, C#, Java, and more. Two courses will help you prepare for the CISA and CISM certification exams. It's on sale for $15.

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

The Role Of Confirmation Bias In Spreading Misinformation

from the it's-everywhere dept

We recently wrote about the need to start thinking differently about mis- and disinformation, as the discussions on it cover a bunch of different -- often unrelated -- concepts. And lumping them together creates problems (as it did with the term "fake news.") Last week (and over the weekend) a good example showed how this plays out in practice.

Rolling Stone put up a story with the extremely provocative title Gunshot Victims Left Waiting as Horse Dewormer Overdoses Overwhelm Oklahoma Hospitals, Doctor Says. As people discovered later, that "Doctor Says" hidden at the end of the headline ended up being the load bearing pillar on which the rest of the story stood. And that pillar turned out to be made of fluff and nonsense, as the hospital is now running a massive popup on the front page of its website saying the story is bullshit:

If you're unable to see the image, it says:

Message from the administration of Northeastern Health System - Sequoyah:

Although Dr. Jason McElyea is not an employee of NHS Sequoyah, he is affiliated with a medical staffing group that provides coverage for our emergency room.

With that said, Dr. McElyea has not worked at our Sallisaw location in over 2 months.

NHS Sequoyah has not treated any patients due to complications related to taking ivermectin. This includes not treating any patients for ivermectin overdose.

All patients who have visited our emergency room have received medical attention as appropriate. Our hospital has not had to turn away any patients seeking emergency care.

We want to reassure our community that our staff is working hard to provide quality healthcare to all patients. We appreciate the opportunity to clarify this issue and as always, we value our community’s support.

The Rolling Stone report was based on an earlier report from local TV station KFOR making these claims. But it seems that no one at Rolling Stone called the hospital to check. And then the story got picked up, almost verbatim, a ton of other places. The Guardian had a story. The BBC. So did the Hill (that that one has since been deleted).

The story seemed especially popular in foreign media as a chance to laugh at the US.

And, of course, the fact that so many publications ran with this story contributed to the standard narrative from those who dislike and distrust the mainstream media to argue that they are regular perpetrators of "fake news" or "disinformation." Of course, as Eva Galperin correctly notes, absolutely everyone is susceptible to believing and amplifying stories that confirm our biases.

The real question, of course, is how these kinds of things are dealt with -- and what sort of corrective process there is. This is something that was discussed in the excellent book Network Propaganda, which tries to distinguish how misleading information flows through society -- and whether organizations are willing to correct mistakes and admit to errors. Or, if they continue to stand by them. That's the difference between an honest mistake -- which absolutely everyone is susceptible to falling for -- and those who specialize in bad faith presentation of misleading propaganda.

However, as we've discussed before, when you conflate a mistake with the deliberate bad faith pushing of false information, then that only serves to give more ammunition to those who wish to not just discredit all content from certain publications, but to then look to minimize complaints against "news" organizations that specialize and focus on bad faith propaganda, by simply claiming it's no different than what the mainstream media does in presenting "disinformation."

But there is a major difference. A mistake is bad, and everyone who fell for this story looks silly for doing so. But without a clear pattern of deliberately pushing misleading or out of context information, it suggests a mere error, as opposed to deliberate bad faith activity. The same cannot be said for all "news" organizations.

Filed Under: confirmation bias, covid, disinformation, hospitals, ivermectin, misinformation
Companies: rolling stone

Biden Has Wasted A Year Failing To Fill Top Telecom Oversight Spots

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

Consumer groups have grown increasingly annoyed at the Biden administration's failure to pick a third Democratic Commissioner and permanent FCC boss nearly eight months into his term. After the rushed Trump appointment of unqualified Trump BFF Nathan Simington to the agency (as part of that dumb and now deceased plan to have the FCC regulate social media), the agency now sits gridlocked at 2-2 commissioners under interim FCC head Jessica Rosenworcel.

While the FCC can still putter along tackling its usual work on spectrum and device management, the gridlock means it can't do much of anything controversial, like reversing Trump-era attacks on basic telecom consumer protections, media consolidation rules, or the FCC's authority to hold telecom giants accountable for much of, well, anything. If you're a telecom giant like AT&T or Comcast, that's the gift that just keeps on giving.

As the Washington Post notes, the Biden camp hasn't appointed anybody to lead the other top telecom regulatory agency, the NTIA. The inaction on both the NTIA and FCC appointments are setting records:

"Nearly eight months into his presidency, Biden has yet to pick permanent leaders for the Federal Communications Commission and the Commerce Department’s National Telecommunications and Information Administration, which together oversee and set policy for the broadcast and Internet service industries. For the FCC, that’s slower than any president since Jimmy Carter in 1977 — just by a few days — and for NTIA, it’s the longest ever since the agency’s founding in 1978.

Adding some complexity to this mess is the fact that interim FCC boss Jessica Rosenworcel's term is up at the end of the year. So if this trend of telecom policy apathy continues, there's the possibility that the GOP could enjoy a 2-1 Commissioner majority at the Biden FCC. Which, you know, isn't great if you care about doing absolutely anything to hold regional telecom monopolies accountable. During a pandemic. In which broadband has been shown to be essential infrastructure. And during a climate crisis. When companies are showing their networks still aren't resilient enough. It's bad, is what I'm saying. Even if your primary goal isn't restoring net neutrality and FCC authority.

While the Biden administration certainly inherited a lot to deal with, there's really no excuse for the delay. It's not as if the administration is being asked to build a nuclear reactor out of string cheese and lint -- it's just some regulatory appointments and hearings. At this rate, by the time the FCC appoints somebody, it will take most of the rest of the year to get them seated. So whereas the Trump GOP set about dismantling telecom consumer protection with a brutal efficiency, the Biden team will have wasted an entire year. Consumer groups are being polite about it, but it's a big screw up:

"We've had a lost year in policymaking because of the slowness of the Biden administration to name a full FCC,” said Christopher Lewis, president and CEO of consumer group Public Knowledge, which backs reinstating the Obama-era net neutrality rules. “It's probably the biggest missed opportunity we have had in communications policy this year."

The Ajit Pai Donald Trump GOP assault on the FCC's consumer protection authority was relentless, ruthless, and incredibly efficient. Nathan Simington, generally viewed as unqualified for the role given his lack of telecom experience, got his FCC spot with a 31 day rushed appointment. The Democrats had an opportunity to be equally efficient and ruthless in appointing their picks and restoring FCC authority, and instead they've chosen to trip over their own asses. Nobody I've spoken to anywhere in DC can provide a functional reason why telecom oversight has simply been forgotten.

Though it is worth reminding folks that the myopic DC internet policy focus on "big tech" is something telecom and media giants (from AT&T to Rupert Murdoch) have actively and repeatedly encouraged. They want the focus exclusively on the large tech giants whose ad empires they covet and not on their own monopolization, privacy, or other problems. It's also worth reminding folks that there was no such delay, controversy, or consternation when it came time to give Comcast lobbyist David Cohen (a top Biden fundraiser) a kushy job as Canadian Ambassador.

At some point you have to assume that whoever has Biden's ear likes having an FCC whose consumer protection authority has been largely lobotomized courtesy of one of the most scandal prone and unpopular policy proceedings in internet policy history.

Filed Under: fcc, joe biden, net neutrality, ntia, regulation, telcos

External Investigation Finds Small Number Of Aurora PD Officers Create The Most Problems (Plus 98 Other Reason To Improve)

from the things-the-PD-already-knew-but-didn't-want-to-deal-with dept

Maybe cops are too close to the action? Perhaps that's why it always seems it takes an outside entity to discover the problems (and problem officers) in police departments. The US Department of Justice frequently does this (less frequently from 2017-2020), although the long-term effects of its consent decrees and investigations seems to be pretty much negligible.

So, why can't the police police themselves? The most obvious answer is there's no reason to. Few politicians are willing to go head-to-head with law enforcement agencies and even less willing to do so with their unions. Appearing to be tough on crime usually plays well enough it won't cost them votes. Looking the other way keeps legislators employed.

Accountability activists are doing the work we're paying professional government employees to do, for the most part. But recent events have made some legislators realize sucking up to cops isn't as likely to result in lifetime employment as it used to. Changes will be made, if only because they're politically expedient.

But back to the original question: why can't cop shops determine what's holding them back or which cops are a detriment to the force? We're still left to speculate, but there's no speculated answer that makes these agencies look good. And neither do the outside reports, which highlight tons of stuff that should have been obvious to those closest to the action.

This report deals with a single agency in a Colorado city with a population of 369,000. And yet…

Here are the 99 ways Aurora police can improve, according to a comprehensive review launched by the city

Ninety. Nine. Only Jay-Z had this many problems and he was able to subtract at least one.

The Aurora PD has problems. It cannot pretend it doesn't. There's too much on the record. And yet, it refuses to do anything about it. Prompted by a series of incidents in 2020 -- including an officer passed out drunk behind the wheel of a police car, the killing of Elijah McClain, and the wrongful detainment of a black woman and her four children, the City of Aurora decided to engage in some long-delayed oversight.

Its findings are things the PD should have known. (And likely knew, but did nothing about.) There are terrible officers. And there are the rest of the officers, supervisors, and top-level management who look the other way, which definitely does not make them "good" cops.

Just 35 officers accounted for 40% of the officer misconduct cases between 2017 and 2020, a "disproportionately large share," according to investigators.

Can the PD operate without these officers? Most likely, yes. But it refuses to get rid of its worst employees, which turns city residents into ATMs for lawsuit settlements.

Why haven't these officers been ousted? Well, it's the department itself, which is most likely hamstrung by its contract with the Aurora Police Association, the local union that stands as a bulwark between bad officers and the accountability that would result in a better police department. The report also states there's too much red tape for discipline to be effective, and that internal investigations take too long.

And so, having ignored the problems for years, the list of problems is exceedingly long. (And, to be fair, it is, at times, somewhat repetitive.) One of the main areas needing improvement is the PD's use of force policies. What's in place is minimal and provides very little guidance. It needs more specifics and limitations. The report lists a large number of improvements, including de-escalation as the default and giving people the opportunity to comply with commands before handing out beatdowns.

This, of course, will require more training, which the report recommends.

And there should be a lot more transparency and accountability.

APD should require officers to document, and provide specific information about, all interactions with the public that are not voluntary.

[...]

APD should make information about complaints relating to bias, profiling, and discrimination available on its website, along with information about the adjudication of investigations of such complaints.

A large part of the report deals with the APD's handling of complaints against officers. The way it works now is that it doesn't work. It's (perhaps intentionally) convoluted, complex, and unlikely to result in thorough or timely investigations. The report says nearly everything about this needs to change.

Complaint and discipline procedures should be codified in separate directives with an emphasis on enhanced clarity.

The current process for handling external complaints should be streamlined. Currently, it is convoluted and substantially more complex than it should be. Policies relating to administrative investigations and external complaints should be consolidated.

Allegations of misconduct against employees that may result in discipline or other corrective actions should be identified and categorized by the severity of rule, policy, practice violation in the rewritten directive.

These are all recommendations. It's unclear whether the APD is under any obligation to implement them. And if the city does make these mandatory, it's unclear how much its existing agreement with the APD's union will prevent some of these from moving forward. But it's clear the department needs to change. The disappointing thing is that it took the city (and city residents' tax dollars) to point out problems the APD already should have been aware of… and problems it should have already been making efforts to address.

Filed Under: aurora, aurora pd, colorado, police, police unions

Backpage Founders Trial Finally Begins

from the where-will-it-end? dept

It's been over three years since Backpage.com was seized (the week before FOSTA was signed into law -- which is notable since every conversation about the need for FOSTA claimed it was because existing laws were useless to stop Backpage). However, in the intervening years we've seen that the loss of Backpage, rather than "protecting" women, seems to have put women at much greater risk. The recent Government Accountability Office (GAO) report highlighted how the loss of Backpage, combined with FOSTA, has made it difficult for law enforcement to track down actual sex traffickers.

As more of the backstory behind the war on Backpage came out, the more ridiculous it looked. The company actually was incredibly helpful in working with law enforcement to track down and stop sex trafficking. The problem came when law enforcement wanted to stop more than actual sex trafficking, and started going after consensual sex work. Backpage pushed back, suggesting that was too far, and that's when the government turned Backpage into being a villain.

With the trial beginning, the Daily Beast has as pretty comprehensive and pretty fair article detailing the whole thing, including raising serious questions about what exactly Backpage's founders actually did to deserve this criminal trial.

According to documents published by Reason, federal prosecutors in the Western District of Washington reviewed more than 100,000 documents and interviewed more than a dozen witnesses in 2012 in an attempt to bring a case against Backpage, but failed to find a smoking gun. In fact, according to a memo written by two assistant U.S. attorneys at the time, local FBI agents found the company “remarkably responsive to law enforcement requests” and said the site “often takes proactive steps to assist in investigations.”

“At the outset of this investigation, it was anticipated that we would find evidence of candid discussions among [Backpage] principals about the use of the site for juvenile prostitution which could be used as admissions of criminal conduct," the attorneys wrote in a 2013 update to the memo. "It was also anticipated that we would find numerous instances where Backpage learned that a site user was a juvenile prostitute and Backpage callously continued to post advertisements for her. To date, the investigation has revealed neither.”

The article also notes how damaging FOSTA and (relatedly) the loss of Backpage has been:

In the weeks after its passage, FOSTA/SESTA felled not only Backpage, but other adult advertising sites like Massage Republic and Cityvibe, and even the Craigslist personal ads section. The impact was tangible: A survey from the sex worker advocacy group Hacking/Hustling found 33.8 percent of respondents reported an increase in violence from clients after the law was signed, and 72.5 percent reported they were facing increased financial insecurity. Advocates related stories of sex workers who were thrust into the arms of pimps in order to find work, or back into abusive relationships for want of somewhere to stay.

The article does note that the founders on trial, Jim Larkin and Michael Lacey, could be highlighting the harm to sex workers that came from taking down Backpage, but instead they've focused specifically on the "free speech" arguments.

Whether Larkin and Lacey want this status is less clear. Their pre-trial statement paints them as free-speech warriors valiantly defending “offensive” and unpopular speech.” Conspicuously missing from the statement, as journalist Melissa Gira Grant pointed out on Twitter, are the words “prostitution” or “sex work;” there is only a glancing reference to “adult advertising.”

Kaytlin Bailey, a former sex worker and host of The Oldest Profession Podcast, says the longtime newspapermen are now telling the wrong story.

“I were in their shoes, the story I would be telling is the story of the survival of their users,” she said, referring to the sex workers who lost their source of income when the site was taken offline.

“They think of themselves as free speech warriors, and I think sex workers think of themselves as in a fight for survival.”

The article also quotes Prof. Alexandra Yelderman, who has been one of the top scholars on the dangers of things like FOSTA and removing sites that facilitated speech, highlighting just how questionable this lawsuit actually is:

Alexandra Yelderman, a visiting assistant professor at the University of Notre Dame Law School, argues that the trial still holds serious significance—more so than the criminal prosecutions of RentBoy, myRedBook, and other adult websites. While those sites only advertised sex work, Yelderman said, Backpage advertised other services, such as housing, cars, and temporary jobs. And everyone should be concerned that the government would jeopardize that kind of speech to get at the other stuff.

“What the Backpage takedown and prosecution is an example of is the government's willingness to throw all sorts of speech under the bus here, in order to get at speech that—according to the indictment—facilities the crime of prostitution,” she said.

“This is not a trafficking prosecution,” she added. “This is a case where allegations that [the founders] facilitated prostitution were an impetus for the government to take aim at this entire swath of speech.”

Whether you liked Backpage or not -- and it's fair to criticize some of the company's business practices -- this trial is incredibly important. And given the nature of the subject matter (not to mention some serious concerns about the judge's conflicts--she's married to the state Attorney General who campaigned against the website), there's a decent chance of a ruling here that will set a terrible precedent both for free speech online and for sex workers.

Filed Under: 1st amendment, fosta, free speech, james larkin, michael lacey, section 230, sex trafficking, sex work, user generated content
Companies: backpage