Disentangling Disinformation: Not As Easy As It Looks

from the impossibility-theories dept

Body bags claiming that “disinformation kills” line the streets this week in front of Facebook’s Washington, D.C. headquarters. A group of protesters, affiliated with “The Real Facebook Oversight Board” (an organization that is, confusingly, not affiliated with Facebook or its Oversight Board), is urging Facebook’s shareholders to ban so-called misinformation “superspreaders”—that is, a specific number of accounts that have been deemed responsible for the majority of disinformation about the COVID-19 vaccines.

Disinformation about the vaccines is certainly contributing to their slow uptake in various parts of the U.S. as well as other countries. This disinformation is spreading through a variety of ways: Local communities, family WhatsApp groups, FOX television hosts, and yes, Facebook. The activists pushing for Facebook to remove these “superspreaders” are not wrong: while Facebook does currently ban some COVID-19 mis- and disinformation, urging the company to enforce its own rules more evenly is a tried-and-true tactic.

But while disinformation “superspreaders” are easy to identify based on the sheer amount of information they disseminate, tackling disinformation at a systemic level is not an easy task, and some of the policy proposals we’re seeing have us concerned. Here’s why.

1. Disinformation is not always simple to identify.

In the United States, it was only a few decades ago that the medical community deemed homosexuality a mental illness. It took serious activism and societal debate for the medical community to come to an understanding that it was not. Had Facebook been around—and had we allowed it to be arbiter of truth—that debate might not have flourished.

Here’s a more recent example: There is much debate amongst the contemporary medical community as to the causes of ME/CFS, a chronic illness for which a definitive cause has not been determined—and which, just a few years ago, was thought by many not to be real. The Centers for Disease Control notes this and acknowledges that some healthcare providers may not take the illness seriously. Many sufferers of ME/CFS use platforms like Facebook and Twitter to discuss their illness and find community. If those platforms were to crack down on that discussion, relying on the views of the providers that deny the gravity of the illness, those who suffer from it would suffer more greatly.

2. Tasking an authority with determining disinfo has serious downsides.

As we’ve seen from the first example, there isn’t always agreement between authorities and society as to what is truthful—nor are authorities inherently correct.

In January, German newspaper Handelsblatt published a report stating that the Oxford-AstraZeneca vaccine was not efficacious for older adults, citing an anonymous government source and claiming that the German government’s vaccination scheme was risky.

AstraZeneca denied the claims, and no evidence that the vaccine was ineffective for older adults was procured, but it didn’t matter: Handelsblatt’s reporting set off a series of events that led to AstraZeneca’s reputation in Germany suffering considerably. 

Finally, it’s worth pointing out that even the CDC itself—the authority tasked with providing information about COVID-19—has gotten a few things wrong, most recently in May when it lifted its recommendation that people wear masks indoors, an event that was followed by a surge in COVID-19 cases. That shift was met with rigorous debate on social media, including from epidemiologists and sociologists—debate that was important for many individuals seeking to understand what was best for their health. Had Facebook relied on the CDC to guide its misinformation policy, that debate may well have been stifled.

3. Enforcing rules around disinformation is not an easy task.

We know that enforcing terms of service and community standards is a difficult task even for the most resourced, even for those with the best of intentions—like, say, a well-respected, well-funded German newspaper. But if a newspaper, with layers of editors, doesn’t always get it right, how can content moderators—who by all accounts are low-wage workers who must moderate a certain amount of content per hour—be expected to do so? And more to the point, how can we expect automated technologies—which already make a staggering amount of errors in moderation—to get it right?

The fact is, moderation is hard at any level and impossible at scale. Certainly, companies could do better when it comes to repeat offenders like the disinformation “superspreaders,” but the majority of content, spread across hundreds of languages and jurisdictions, will be much more difficult to moderate—and as with nearly every category of expression, plenty of good content will get caught in the net.

Reposted from the EFF's Deeplinks blog

Filed Under: content moderation, control, disinformation, rules

Daily Deal: The All-Access CompTIA A+ And Network Certification Prep Bundle

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

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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

Last Month In An LA Court I Witnessed The Future Of A World Without Section 230; It Was A Mess

from the couldn't-you-have-done-more dept

Disclosure: I was an expert witness for RedBubble in this case (and another case) and submitted some reports regarding this case much earlier in the process, though I did not testify at this trial. I had nothing to do with this trial other than attending it as an interested observer, concerned about litigation involving content moderation. As you can see, however, my opinions on this remain identical to my opinions on content moderation going back basically forever...

There's been a lot of talk lately about "repealing" or "reforming" Section 230. We've explained at great lengthy why this would be a mistake and would lead to a ton of frivolous litigation. Section 230 co-author Senator Ron Wyden has referred to this as creating a situation where website operators would face "death by ten thousand duck-bites." Professor Eric Goldman has explained the procedural benefits of Section 230 in that it helps get rid of these cases more quickly. And while some (including myself) have pointed out that the 1st Amendment would still protect most claims, without the procedural benefits of Section 230, we'd still see a ridiculous number of nuisance lawsuits in which companies would have to defend each and every content moderation decision. This would be made significantly worse if the law changes in a manner proposed by folks like law professor Danielle Citron, to require websites to show that their content moderation practices are "reasonable," which would require expensive litigation to determine.

The thing is: we have an area where we can actually see this in practice. There is something of a loophole within Section 230: trademark law. From the beginning, Section 230(e)(2) has excluded intellectual property law. For copyright, that gap was filled (not particularly well) by the notice-and-takedown provisions of the DMCA Section 512. But trademark has no official intermediary protections in US law. Experts like Mark Lemley have long advocated for harmonizing the various intermediary laws so that they're all consistent. Many people had thought that perhaps the courts had settled the issue with regards to trademark in the infamous Tiffany case against eBay, in which the courts said that eBay shouldn't be expected to be perfect, and as long as it has some sort of program to deal with counterfeits, then it is no longer liable for counterfeits on its site.

However, last summer, a federal judge in LA effectively re-opened the issue in a case brought by the holding company that controls the "Brandy Melville" clothing brand against print-on-demand website RedBubble. Brandy Melville argued that RedBubble was violating its trademarks (and copyrights) in printing some of its designs, and while the judge did toss out much of the case, he allowed a few parts to move forward to a jury trial. The judge said that the Tiffany v. eBay rule didn't necessarily apply -- since that was a case of users selling physical products, whereas with RedBubble, the company would take designs uploaded by users, and pass them on to various print shops for the actual printing. So the open question, in theory, was whether or not that deeper involvement opened itself up to contributory liability (the judge correctly dismissed the claims about direct infringement). There were a few other oddities about the judge's ruling as Eric Goldman noted at the time:

However, the Ohio State ruling didn’t address contributory trademark infringement, and this court sends that issue to the jury. Unlike Tiffany v. eBay, which involved legitimate used resales of Tiffany items, the court says “Redbubble is not burdened by the need to parse valid uses of Brandy Melville’s trademarks from invalid ones, as Brandy Melville has made clear to Redbubble that there are no legitimate sales of Brandy Melville products through its site. As such, all uses of Brandy Melville’s marks that appear on Redbubble’s website are presumptively infringing.” I doubt the court means this statement so baldly, as it disregards parodies, nominative uses, and other legitimate activities. Similarly, the plaintiff complained that RedBubble hasn’t disabled internal consumer keyword searches for its trademarks, but that doesn’t seem like a right exclusive to the trademark owner in light of MTM v. Amazon.

In practice, however, pretty much the entire trial revolved around whether or not RedBubble "did enough" in its content moderation. Over and over again, the lawyers for Brandy Melville kept trying to insist that any failures by RedBubble's content moderation was proof that it did not do enough. Indeed, in the closing arguments, even after it had been pointed out that RedBubble spent millions of dollars per year on its content moderation efforts, and had removed every example that Brandy Melville's lawyers had sent them within a day or two, the lawyer straight up asked the jury "don't you think RedBubble could have done more?"

There were a number of other oddities that came out during the trial. The trial was explicitly about just three specific trademark designs that Brandy Melville held -- two of which never actually appear on the front of t-shirts or other products (the company said it only used them on clothing hang tags and on store signs), and one that the company registered just weeks before suing. Incredibly, Brandy Melville put on the stand a manager of some of their stores who admitted two incredible things: (1) that she was unable to tell which products on RedBubble were legitimate and which were infringing (so how the hell could they expect RedBubble to just know?!?) and (2) that in many years of working and managing Brandy Melville stores, she could not recall a single time that anyone ever brought in a RedBubble product to "return" it. That latter point really stuck with me because it highlighted the near total lack of confusion, which is a key point in trademark infringement. There needs to be confusion.

Another oddity: Brandy Melville kept focusing on the fact that RedBubble refused to block all tags that included "Brandy Melville" or any search results on "Brandy Melville." But as Goldman noted above (and the judge seemed to miss), that's not a right that trademark law gives a trademark holder. RedBubble pointed out that it actually used the tagging system as part of its content moderation efforts -- and that letting users tag stuff "Brandy Melville" made it easier for its content moderation team to find and review those items to see if they infringed. Also, while it only came up exceptionally briefly, one of the products that was on RedBubble's site was a t-shirt that read: "Fuck Brandy Melville," which is clearly commentary/parody -- and not something anyone would assume came from Brandy Melville itself. Brandy Melville cannot abuse trademark law to say any and all use of the term must be blocked. That's not how trademark law works.

For its part, RedBubble spent plenty of time describing the extreme lengths it goes to try to prevent infringing works on its site, including making use of various technologies, having a large team of human reviewers, and working closely with lots of brands to better understand what is and what is not infringing. But, again, the plaintiff's focused on "is it enough."

And, because they kept focusing on a very few examples where Brandy Melville logos or other designs were found on RedBubble, that was proof that, no, the company did not do enough. And... the jury bought it. At the end of the three day trial, the jury said that RedBubble was liable as a contributory infringer, including not just for trademark infringing, but for counterfeiting. This was particularly bizarre because for there to be counterfeiting, there needs to be an actual copying of a product sold by the trademark holder. And, as already noted, two out of the three designs were never actually used on the front of products by Brandy Melville, and as for the third design (the "LA Lightning" mark -- which, seems like it may have its own trademark issues, considering it was yanked from an independent professional basketball team), they never seemed to show exact copies of it on any RedBubble products either. Instead, somewhat bizarrely, Brandy Melville focused on very distinct and different variations on the logo that appeared on RedBubble products -- including a clear parody one for University of Florida students. And the counterfeiting issue was key to Brandy Melville's case, because it would allow them to ask for statutory damages, running up into multiple millions of dollars.

And this is a clear issue with litigation around content moderation: the jury was primed over and over again to believe that any mistake makes the company liable. Brandy Melville's lawyers just kept showing designs that mention Brandy Melville or looked similar to Brandy Melville (frequently for products that Brandy Melville had no trademark over) and then just kept harping on the fact that Brandy Melville didn't approve any of this, and clearly RedBubble was a "counterfeiting" site. In the end, the jury awarded $520,000 to Brandy Melville ($300k "counterfeiting" for the "Brandy Melville" mark, $200k for "counterfeiting" the LA Lightning mark, and then $20k for trademark infringement.)

At the close of the case, RedBubble immediately sought a judgment as a matter of law to effectively try to take the case out of the jury's hands (arguing that Brandy Melville failed to present enough evidence and the judge could rule on the matter directly without needing the factual deliberation of the jury). This week the judge did in fact rule that the $300k for contributory counterfeiting on the Brandy Melville mark was improper, bouncing the award down to $220,000.

As the judge noted, the fact that RedBubble's products were not the same as anything Brandy Melville made regarding those logos, meant that there couldn't be a legitimate counterfeiting claim for that mark:

Here, Plaintiff failed to present evidence of products that bore a spurious Brandy Melville Heart Mark and were offered for sale on Redbubble.com that were remotely similar to products that Plaintiff offered for sale, let alone "stich-for-stitch copies" of Plaintiff's products. The Court therefore concludes that the evidence presented at trial permits only one reasonable conclusion--Plaintiff failed to establish that Redbubble is liable for contributory counterfeiting of the Brandy Melville Heart Mark.

The end result is way below the many millions of dollars Brandy Melville was seeking, though even the small amount it got seems ridiculous based on an understanding of what actually happened.

But, there's a larger point here: this case was an unfortunate alternate reality universe view of what will happen without Section 230 or if we moved to a Citron-style "reasonable" standard. You'd get a ton of litigation in which everyone was just going back and forth arguing over what the "right" level of content moderation is, and arguing that any mistakes were evidence that "not enough" was being done by the companies. That's a disaster scenario, one in which any simple mistake (even where there's perhaps strong evidence that no mistake was actually made) is subject to the whims of a jury (or a judge) and an expensive, time-consuming trial. I recognize that law professors might not care that much about all of this wasteful litigation, but in the real world it matters a ton. This kind of thing can, and will, kill off smaller companies, even if they can succeed in court. And that doesn't help anyone, except possibly some trial lawyers who can threaten and shake down tons of websites.

Filed Under: content moderation, counterfeiting, intermediary liability, jury trials, print on demand, section 230, trademark
Companies: brandy melville, redbubble

Broadband Portion Of Bipartisan Infrastructure Plan Appears Watered Down But Still Helpful

from the watered-down dept

As we've noted previously, the broadband component of the Biden infrastructure bill has slowly been whittled down during "bipartisan negotiations." What was first a $100 billion proposal is now a $65 billion proposal, with things industry didn't like (like support for community broadband) slowly hollowed out. And while the White House fact sheet on the agreement offers some detail on the compromise (which still isn't technically final), it remains arguably vague:

"The deal’s $65 billion investment ensures every American has access to reliable high-speed internet with an historic investment in broadband infrastructure deployment, just as the federal government made a historic effort to provide electricity to every American nearly one hundred years ago.

The bill will also help lower prices for internet service by requiring funding recipients to offer a low-cost affordable plan, by creating price transparency and helping families comparison shop, and by boosting competition in areas where existing providers aren’t providing adequate service. It will also help close the digital divide by passing the Digital Equity Act, ending digital redlining, and creating a permanent program to help more low-income households access the internet."

Fortunately Cyrus Farivar at NBC obtained a leaked draft copy of broadband grant portion of the infrastructure plan and linked to it in his reporting (something that's annoyingly uncommon in press policy coverage).

At first look, there's some notably good things in it, including very clear signals that the government realizes its broadband maps are hot garbage, and plans to do something about it after Congress passed the DATA Act last year. The leaked draft also makes it clear that any new subsidized networks will need to deliver broadband at speeds of 100 Mbps down, 20 Mbps up. That's notably better than the current FCC "broadband" definition of 25 Mbps down, 3 Mbps up, or the even more pathetic standard of 10 Mbps down, 1 Mbps up used in many previous subsidy programs:

"A draft copy of the 68-page broadband section of the infrastructure bill obtained by NBC News would establish a de facto minimum standard of 100 Mbps down and 20 Mbps up, and it would require that internet service providers have an eye toward even higher speeds, most likely through fiber optic service.

Note this only changes the broadband definition for this specific grant program, not the overall definition of broadband, which remains at a fairly pathetic 25 Mbps down, 3 Mbps up. And while the 100/20 standard is weaker than the symmetrical 100/100 many wanted (cable and fixed wireless providers lobbied for this because they can't reach the full 100/100 provided by full fiber), it's still progress. Industry had lobbied fiercely against any update to any of the definitions, as doing so only illustrates market failure.

The leak also indicates that the proposal extends the COVID "Emergency Broadband Benefit" (EBB) program, though reporter chatter indicates it will be at a lower rate than it's at currently ($50 discount for low-income Americans, $75 discount for tribal areas). But reading through the proposal it's not really clear if they managed to include any additional guardrails on the program to stop the ISPs currently abusing it to upsell users to more expensive options (which was undermining the whole point).

As with all policy, details and implementation will matter. The proposal isn't final, and as Ars Technica notes, its final form could still feature narrow definitions of broadband speeds (to ensure satellite and wireless options are considered "serving" a neighborhood), strict restrictions on qualifications for low-cost plans, and an overly generous definition of what constitutes a "low cost" plan. A lot of this stuff won't be fully obvious until we see final language and implementation.

While many of these improvements will help, DC historically has been quite averse to doing anything to truly target the real cause of the problem they're trying to fix (regional monopolization and the corruption that protects it). In part because DC is absolutely slathered with Comcast, Verizon, Charter, AT&T, and T-Mobile campaign contributions and lobbying cash, but also because these companies are bone grafted to our intelligence gathering apparatus. AT&T, for example, is effectively a dutiful and patriotic part of government now, further reducing an already fleeting interest in holding it accountable.

As a result, all too often the answer to the broadband problem in DC is "throw more subsidies at it," despite a very clear track record this doesn't work all that well. The other popular DC approach to broadband dysfunction is to apply regulatory band aids on the problem without fixing the underlying rot first. So you get these elaborate bureaucratic fixes like the EBB, which genuinely does help low income Americans by giving them a broadband discount (when it works), but doesn't really cut to the root cause of why US broadband is slow, expensive, and patchy.

In twenty years of covering telecom I've lost track of how many big, well hyped proposals government has unveiled that claim they'll finally fix the problem that is US broadband. Corruption means that most of the time these solutions just nibble around the edges of the real issues or get weakened down steadily by lobbying influence. Refuse to fix corruption, and nothing changes, something exemplified in countless other sectors. That said, the proposal does seem to include things of value, though it remains unclear when a full text of the actual bill will be made available to the public.

Filed Under: broadband, infrastructure

Florida Sheriff's Office Now Notifying People It Will Be Inflicting Its Pre-Crime Program On Them

from the ensuring-accountability-for-everyone-but-the-Sheriff's-Office dept

The Pasco County (FL) Sheriff's Office has been swamped with negative press coverage centering on its predictive policing program. The Office claims it's not "predictive policing," but rather "intelligence-led policing." Whatever you call it, it sucks.

The Sheriff's Office may have some lofty goals that involve stopping crime before it starts, but the supposedly forward-looking policing program does little more than subject past offenders (along with friends, families, and acquaintances) to sustained harassment by law enforcement officers. What's supposed to keep crime down by directing resources to possible serious criminal activity has manifested as multiple visits from officers who do little more than try to coerce people into consenting to unlawful searches and write out nuisance citations for things like missing mailbox numbers or uncut grass.

The Sheriff's Office has since spun this off to include students at public schools, presumably to prep kids for a future of pointless harassment by law enforcement officers simply because they have the misfortune of living in Pasco County.

Thanks to some lawsuits and investigations, the Sheriff's Office is being a bit more proactive on the notification front. According to this ongoing investigation by the Tampa Bay Times, targets of the "intelligence" program are now being informed they've been blacklisted by the Sheriff's Office.

It starts like an offer of admission from a prestigious university.

“We are pleased to inform you that you have been selected…” it says.

But the four-page letter from the Pasco Sheriff’s Office goes on to tell recipients they will be facing enhanced police scrutiny under the agency’s controversial intelligence program.

“You may wonder why you were enrolled in this program,” the letter continues. “You were selected as a result of an evaluation of your recent criminal behavior using an unbiased, evidence-based risk assessment designed to identify prolific offenders in our community. As a result of this designation, we will go to great efforts to encourage change in your life through enhanced support and increased accountability.”

It all sounds so positive. While there's really no evidence this is actually "evidence-based" or "unbiased," at least the Sheriff's Office is willing to "encourage change in your life." It sounds nice but "encouragement" probably just means "constant harassment" and "enhanced support" is probably a euphemism for suspicionless searches. "Increased accountability" may be part of this program, but it won't be applied to the Pasco County Sheriff's Office. Nope, there's a really good chance "increased accountability" means more fines, more citations, more arrests, and more jail time.

It's definitely an attempt at a lighter touch.

The new letter to so-called “prolific offenders” says its purpose is to communicate the agency’s “sincere desire” to help recipients “begin a new path.”

“We are committed to your success,” it says.

But is it sincere? All evidence points to "no." The stated goal of the Sheriff's "pre-crime" program was, in the department's own words, to make targets so miserable they either moved or sued the Sheriff's Office. Now that some targets have done both, the Office appears to be trying to rein things in just a bit, or at least pretend the program is not solely about vindictive, unjustified harassment of certain Pasco County residents.

After all the sweet things about wanting to help people live their best lives, the letter [PDF] gets down to business. If program targets can't meet the standards the Office doesn't bother detailing in this letter, they can expect even more law enforcement interaction in the future.

“Our desire to help you will not hinder us from holding you fully accountable for your choices and actions.”

It then says the Sheriff’s Office will share recipients’ names and criminal histories with local, state and federal law enforcement agencies to ensure “the highest level of accountability” for any future crimes they commit.

External pressure may have forced the Sheriff's Office to reconsider its "intelligence-led policing" program. But this letter shows it didn't get much further than sanding down the edges of some of its sharper words. The changes appear to be limited to giving residents heads up on their impending misery.

Filed Under: florida, harassment, minority report, pasco county, pre-crime, predictive policing

Germany's Constitutional Court Ponders Whether Government Users Of Zero-Day Surveillance Malware Have A Duty To Tell Software Developers About The Flaws

from the resolving-conflicting-aims dept

As Techdirt has reported previously, the use of malware to spy on suspects -- or even innocent citizens -- has long been regarded as legitimate by the German authorities. The recent leak of thousands of telephone numbers that may or may not be victims of the Pegasus spyware has suddenly brought this surveillance technique out of the shadows and into the limelight. People are finally starting to ask questions about the legitimacy of this approach when used by governments, given how easily the software can be -- and apparently has been -- abused. An interesting decision from Germany's constitutional court shows that even one of the biggest fans of legal malware is trying to work out how such programs based on zero-days can be deployed in a way that's compatible with fundamental rights. The court's press release explains:

The complainants [to the constitutional court] essentially assert that, by enacting the authorisation laid down in [the German Police Act], the Land Baden-Württemberg violated the guarantee of the confidentiality and integrity of information technology systems -- a guarantee arising from fundamental rights -- because under that provision, the authorities have no interest in notifying developers of any vulnerabilities that come to their attention since they can exploit these vulnerabilities to infiltrate IT systems for the purpose of source telecommunications surveillance, which is permitted under [the German Police Act]. Yet if the developers are not notified, these vulnerabilities and the associated dangers -- in particular the danger of third-party attacks on IT systems -- will continue to exist.

That is, the failure to notify developers about the vulnerabilities means the authorities are putting IT systems in Germany at risk, and should therefore be stopped. The complainants went on to argue that if the court nonetheless ruled that the use of such malware was not considered "inherently incompatible with the state’s duty of protection", at the very least administrative procedures should be be established for evaluating the seriousness of the threat that leaving them unpatched would represent, and then deciding on a case-by-case basis whether the relevant developers should be notified.

The German constitutional court dismissed the complaint, but on largely technical grounds. The judgment said that the complainants did not have standing, because they had failed to substantiate a breach of the government's duty of protection. Moreover, the top court said the question should first be considered exhaustively by the lower courts, before finally moving to the constitutional court if necessary. However, the judges did recognize that there was a tension between a desire to use zero-days to carry out surveillance, and the German government's duty to protect the country and its computer systems:

In the present case, the duty of protection encompasses the obligation for the legislator to set out how the police are to handle such IT security vulnerabilities. Under constitutional law, it is not inherently impermissible from the outset for source surveillance to be performed by exploiting unknown security vulnerabilities, although stricter requirements for the justification of such surveillance apply due to the dangers posed to the security of IT systems. Furthermore, fundamental rights do not give rise to a claim that authorities must notify developers about any IT security vulnerabilities immediately and in all circumstances. However, the duty of protection does necessitate a legal framework that governs how -- in a manner compatible with fundamental rights -- an authority is to resolve the conflicting aims of protecting IT systems against third-party attacks that exploit unknown IT security vulnerabilities on the one hand, and on the other hand keeping such vulnerabilities open so that source surveillance can be carried out for the purpose of maintaining public security.

It's not clear whether that call for a legal framework to regulate how the authorities can deploy malware, and when they must alert developers to the flaw it exploits, will be heeded any time soon in Germany. But in the light of the Pegasus leak, it seems likely that other countries around the world will start to ponder this same issue. That's particularly the case since such malware is arguably the only way that the authorities can reliably circumvent encrypted communications without mandating the flawed and unworkable backdoors they have been calling for. If more countries decide to follow Germany in deploying these programs, the need for a legal framework to regulate their use will become even more pressing.

Follow me @glynmoody on Twitter, Diaspora, or Mastodon.

Filed Under: germany, malware, surveillance, vulnerabilities, zero day

Detroit Skating Rink Horns In On Detroit PD's Facial Recognition Gaffe Racket, Denies Teen Girl Opportunity To Skate

from the even-if-our-software-is-wrong,-we-will-still-enforce-its-decision dept

It looks like Detroit, Michigan is trying to corner the market on bad facial recognition tech. The city's police department is already associated with two false arrests based on bad matches by facial recognition software. This latest news, via Techdirt reader Jeffrey Nonken, shows mismatches aren't just limited to the public sector.

A Black teenager in the US was barred from entering a roller rink after a facial-recognition system wrongly identified her as a person who had been previously banned for starting a fight there.

Lamya Robinson, 14, had been dropped off by her parents at Riverside Arena, an indoor rollerskating space in Livonia, Michigan, at the weekend to spend time with her pals. Facial-recognition cameras installed inside the premises matched her face to a photo of somebody else apparently barred following a skirmish with other skaters.

The teen told staff it couldn't possibly be her since she had never visited the venue before. But it didn't matter to the management of the rink, which is located in a Detroit suburb. She was asked to leave and now her parents are considering suing the rink over the false positive. Fortunately, no one at the rink felt compelled to call the police, which likely wouldn't have helped anything considering local law enforcement's track record with faulty facial recognition search results.

As for Riverside Arena, it's apologetic but not exactly helpful. Management claims deploying facial recognition tech on patrons is part of the "usual" entry process. It also unexplained that it's "hard to look into things when the system is running," which I suppose means that's why no one could double-check the match while Robinson was still there contesting the search results.

Being wrong some of the time is also good enough for non-government work, apparently.

"The software had her daughter at a 97 percent match. This is what we looked at, not the thumbnail photos Ms. Robinson took a picture of, if there was a mistake, we apologize for that."

Obviously, there was a mistake. So, this should have just been an apology, not a half-hearted offer of an apology if, at some point in the future, someone other than the people directly affected by this automated decision steps forward to declare the mismatch a mismatch.

This is the other side of the facial recognition coin: private sector use. This is bound to result in just as many mismatches as government use does, only with software that's perhaps undergone even less vetting and without any direct oversight outside of company management. False positives will continue to be a problem. How expensive a problem remains to be seen, but since private companies are free to choose who gets to use their services, lawsuits probably won't be much of a deterrent to deploying and using unvetted software that will keep the wrong people out and, perhaps more disturbingly, let the wrong people in.

Filed Under: detroit, facial recognition, livonia, michigan, skating rink
Companies: riverside arena

It's Time We Talk About Getting Rid Of The Bar Exam. And Here's Why.

from the naked-emperor dept

Thousands of law school graduates sat for the bar exam this week. It has long been questionable whether this semi-annual process of testing lawyers is in any way a valid method of determining whether a lawyer is qualified to practice. But the egregious way bar authorities have altered the administration of the test to respond to the pandemic has made it clear that the answer is no.

In theory, how lawyers become licensed to practice shouldn't really be a technology topic. On the other hand, here at Techdirt we do talk about law, and sometimes that means we need to talk about the role lawyers play in our legal system so that law can be effectively and equitably administered in a way that protects liberty. And sometimes that means that we need to talk about how technology may interfere with that role.

We also regularly chronicle when awful lawyers do actually cause real harm, and we cheer when their bad behavior is finally checked. Lawyer licensure is one way that bad lawyers can be checked, and that's why we need to care when the systems we use to license lawyers themselves need to be checked. Especially when, as now, those systems have deployed technology in a way that just further betrays any credible principle underpinning the licensing system.

Even before the pandemic the system was already straining credulity. While on paper it makes sense for bar admissions authorities to test the competency of new lawyers before admitting them to practice, it has been increasingly apparent that the actual exams being administering generally do no such thing, instead testing them on irrelevant knowledge that will be of little use to them in their jobs, and under circumstances that in no way align with those they are likely to experience as part of the actual practice of law. While there are occasional moments of potential utility, the bar exam, on the whole, has become little more than a formal system of hazing that newbie lawyers must endure before gaining entrance to the profession.

And the pandemic has only exacerbated all of those problems. As the coronavirus upended standard testing practices, it had the effect of pulling back the curtain to reveal the defects of the entire system as bar authorities responded to the moment by doubling-down on the worst of it. Because instead of using it as an opportunity to focus on what could potentially be worthwhile about the exam, bar authorities decided to make it an even more arbitrary and impossible obstacle for new lawyers to hurdle.

To sit for the exam, examinees in many states had no choice but to install insecure, invasive, and unstable remote proctoring software, Examsoft, on their own personal machines (and in some cases expend additional resources to even come up with a machine that would be eligible for the software) in order to lock them down so that they could be used for nothing but writing exam essay answers, and surveilling the test takers while they took the test in order to make sure they did nothing but.

The result of all this distrust by bar authorities that examinees might cheat on their tests was the complete sabotage of their performance on this test by said bar examiners, who had elected to employ this software despite its previous flaky performance.

Speaking of trust, it let examinees be deceived that everything would be fine, only to put them through needless stress when they found out it wasn't.

And it put all these test takers through this hell for nothing.

Horror story after horror story after horror story accumulated during the days of the test as examinees, who in many cases were taking the most important and taxing test of their lives, found themselves with frozen machines, busy support lines, and constant reboots chewing up the finite time they had available to complete the test.

The upshot: for many, the ability to finally earn a living in their new career, despite the immense amount of time and money expended, will be derailed by this fiasco, as many a qualified lawyer will unjustly fail the test thanks to the software failing to work.

Such an outcome is inexcusable, unnecessary, and bad for the profession at large.

It's bad for the profession because it has the effect of locking out scores of people who could actually be good lawyers. Even pre-pandemic, the bar exam had the effect of keeping out smart, capable people who simply don't test well, or who could not afford the extra cost of exam preparation in terms of time or money. The reality is that few, if any, law students graduate from law school ready to sit for the bar exam. Nearly everyone does a separate bar exam course to prepare, which easily adds several thousand dollars to the cost of an already extremely expensive legal education. (Plus it also costs a lot of money to even sign up to take the test in the first place, let alone take the time off to study for it. Google "bar loan" for what a good chunk of law grads need to take out in order to finance the endeavor.) The profession already suffers from a lack of diversity by driving away those who can't afford the enormous cost of pursuing it. Having additional arbitrary hurdles connected with the test only worsens that lack of diversity, and adding even more, through imposing these insidious remote proctoring requirements, will only exclude even more qualified people, and for no good reason.

Because these proctoring requirements are also unnecessary. Treating examinees like presumptive cheaters, especially at the expense of testing their actual competence, does the profession and public a huge disservice. The reality is that the practice of law in the United States is not a memorization game. In fact, relying solely on memory is likely to be malpractice – good lawyering almost always requires looking things up to be sure. The trick is to have enough familiarity with the law to be able to spot the issues that arise and know how to efficiently look up the specific law that applies to them, which are the skills the exam should be testing for. And that means that a timed, open-book test would do a vastly better job meaningfully assessing law graduates on their readiness to be lawyers than this bizarrely patronizing and punitive system currently does.

And it's inexcusable that this is the current state of affairs. It is bad enough that even in normal times bar authorities so heavily policed test takers that they forbade menstruating women from having sanitary supplies available (or forced them to show them off publicly). But the pandemic protocols have completely forsaken any claim on the bar exam being anything close to a socially valuable exercise. Instead these protocols have revealed it to be little more than an arbitrary exercise of power by bar authorities, who seem to be utterly confused about why we have bar authorities in the first place.

The job of bar authorities is to help shore up the administration of justice, not directly undermine it with pointless displays of authority over people's lives and livelihoods. The ghastly irony here is that the very same stakes that have driven bar authorities to automatically suspect every bar candidate of cheating and to impose these onerous remote proctoring rules are the very same stakes that they have shown themselves to be completely indifferent to by imposing these with these very same onerous remote proctoring rules, with potentially devastating and undeserved results to perfectly capable bar candidates' futures. In the wake of these misplaced priorities it is impossible to believe that these same authorities can be qualified custodians for anyone's interests, including the public's. And by so abdicating their legitimacy as stewards of the profession they make it impossible to credibly act as such, no matter how much the public, or the profession, might need them to.

Filed Under: bar exam, examsoft, lawyers, standardized testing, tests
Companies: examsoft

Enough About FOSTA's 'Unintended Consequences'; They Were Always Intended

from the it's-what-they-wanted dept

It feels inevitable that if you’re talking about FOSTA/SESTA (the federal law passed in 2018 that amended section 230), someone, at some point, will mention that it was aimed at combatting sex trafficking that had unintended impacts on folks doing consensual sex work.

Just to provide a few examples, there’s a law review article about FOSTA called “good intentions and unintended consequences.” Or you could look at the 2018 OC Register article called “The Unintended Consequences of a Well Meaning Anti-Sex-Trafficking Law” (complete with cliche sexy legs 🙄). Even Elizabeth Warren, in the announcement for the SAFE SEX Workers Study Act, said “As lawmakers, we are responsible for examining unintended consequences of all legislation, and that includes any impact SESTA-FOSTA may have had on the ability of sex workers to protect themselves from physical or financial abuse.”

But as @cybwhoregology has been pointing out, the narrative of “unintended consequences” is utter nonsense. Negative effects on sex workers (and there were many) were not “unintended.” The text of the law explicitly criminalizes the promotion of prostitution and it’s hard to argue that an interpretation of the law that was clear from its text is unintended. Sex workers and trafficking survivors were very clear about the likely outcome of FOSTA/SESTA prior to its passage. Finally, this narrative is contradicted by what the organizations that supported FOSTA say about their own goals.

1. FOSTA explicitly criminalizes the promotion/facilitation of prostitution that does not involve trafficking.

So the first conclusion I reach when I read these takes is that people have not even skimmed the text of the bill. I don’t really blame them - it’s pretty incomprehensible. But go take a look - the final text is here. I’ll wait.

Okay, do you see why it’s ahistorical to claim that negative effects on sex workers were unexpected? Just in case not, I’ll break it down for you.

Look at 18 U.S.C. §2421A - the bottom of the first page. This is a federal criminal provision, created by FOSTA, prohibiting promotion or facilitation of prostitution. Note that this does not require that any sex trafficking took place. The text clearly says that it is a federal crime to run a computer service with the intent to promote or facilitate prostitution of another person.¹ You can have an aggravated violation under 2421A(b) if the website promotes or facilities the prostitution of 5 or more persons, OR acts in reckless disregard of the fact that such conduct contributed to sex trafficking.

I am going to repeat that point again. You can have a criminal charge under FOSTA, including an aggravated criminal charge, without any trafficking taking place at all. Just promotion or facilitation of prostitution (aka consensual sex work).

This concern is not merely hypothetical. The one criminal prosecution that has happened (US v. Martono, about CityXGuide) under 2421A just resulted in a plea deal where the defendant pled guilty to promotion of prostitution and conspiracy to facilitate prostitution. Although the Department of Justice talked about trafficking in their press release, they never ultimately charged Martono with trafficking, likely because they could not prove that he had the level of knowledge required.²

As if that wasn’t enough, FOSTA also changed Section 230 (the federal law that previously had limited internet platform’s liability) to also allow for state criminal charges against platforms based solely on conduct related to sex work, so long as the conduct underlying the charge is based on 2421A.³

You cannot pass a bill that creates additional federal criminal charges and removes immunity from state criminal charges for the promotion/facilitation of prostitution and then claim that negative effects on sex work were an accident! If the people who passed this bill, and those that advocated for it, didn’t want to harm sex workers, they shouldn’t have passed a bill that created additional crimes for the promotion of prostitution.⁴

2. Sex workers were incredibly clear about the likely impact of SESTA/FOSTA before and at the time of its passage.

The second reason that the narrative that the negative outcomes of FOSTA on sex workers was an unintended consequence is nonsense is because it requires erasing (or ignoring) the people who pointed out contemporaneously that the bills were going to harm sex workers.

If you want receipts, there is the Survivors Against SESTA page from 2018 that encouraged folks to call their Senators to explain how FOSTA/SESTA would harm sex workers. Survivors Against SESTA also produced a one-pager on why sex workers need online spaces. Oh, and here’s their one-pager on how FOSTA and SESTA would harm workers. New Orleans Harm Reduction has a page from 2018 where sex workers outlined materials as part of the social media campaign against FOSTA.

Media even covered these concerns! Here’s a contemporaneous article from Melissa Gira Grant quoting sex workers’ rights experts about the negative impact of either FOSTA or SESTA on sex workers. And there’s a FastCompany article with a tweet from Kate D’Adamo, who said “I was a #sexworker organizer for years in NYC. #FOSTA would undermine almost every single thing I would tell people for how to stay alive. ALL screening, ALL peer references, ALL bad date lists I could send. #SurvivorsAgainstFOSTA.”

It’s also worth checking out the #LetUsSurvive or #SurvivorsAgainstSESTA hashtag, where you can still find many of the posts that people made prior to FOSTA’s passage. (Although the historical record is obviously incomplete because of account deletions, caused in part by platforms’ fear of liability under FOSTA. I believe Alanis Morissette would call that ironic.)

FOSTA and SESTA were two bills that were advocated for by different organizations that were combined into one, giant, bad, law. If SESTA alone was passed, it would have been plausible to argue that anti-sex work effects were collateral damage to efforts to prevent sex trafficking, if not for the accurate predictions about consequences of the bill. In short, sex workers expected these consequences, and said quite clearly that these were the likely outcomes. To quote Bardot Smith, “WHORES TOLD YOU.”

3. Many of the people who advocated for the bill saw increasing the difficulty of engaging in consensual sex work as a feature of the bill, not a bug.

Content warning for language that ignores sex worker agency - skip the next paragraph if that’s harmful to you.

It’s not just that calling the effects unintended erases sex workers’ advocacy and labor. It also ignores the fact that some people who oppose “sex trafficking” often do want to eliminate all sex work. For example, one supporter of the bills was CATW (the Coalition Against Trafficking in Women). CATW explicitly seeks to end what they call “sexual exploitation,” which it defines as possible “only if no woman or girl is trafficked, exploited or prostituted in the sex trade.”⁵ So from the angle of organizations like CATW, as well as the National Center on Sexual Exploitation (formerly known as Morality in Media), and others, the harm to sex workers (who they often do not believe are legitimate stakeholders) is, in fact, a feature, not a bug. If you’re looking for a useful summary of how this dynamic plays out in reporting, I suggest this piece from WHYY Philadelphia. In it, someone who works for CATW and who is speaking from their experience being trafficked makes the claim that “Sex is not work, and work is not sex. And although I recognize that there is a population of people who self-identify as sex workers, it’s really a term that’s used to mask the inherent harms that come with prostitution.” That’s not a statement that is consistent with the idea that harm to sex workers is an unintended result of anti-trafficking efforts.

Of course, this debate goes back far further than section 230 -- it’s a rehashing of a set of conversations that took place during the white feminist sex wars of the 1970s. Far more eloquent people than I have written about how it is true that the binary between sex trafficking and sex work does not do a good job of capturing folks’ experiences, but that’s because it is a product of whorephobia. Whorephobia comes down to the idea that there is something uniquely damaging about work that involves sex, rather than the damage coming from society’s distaste for sex work and the stigma that comes along with that and criminalization.⁶ (Just to be clear -- there is not. Many of the harms that people articulate as coming from this kind of work come from criminalization itself, as well as the lack of affirming health and social services.) Fundamentally, it is impossible to truly respect and listen to sex workers and believe that the goal should be the elimination of sex work, unless you also believe that all work should be eliminated.⁷

To pull us back to FOSTA, I suspect most mainstream technology policy organizations (and reporters, and pundits/scholars) do not want to comment on or engage with the fact that some (but not, by any means, all) anti-sex trafficking organizations believe that all sex work is inherently exploitive or leads to sex trafficking. Thus, the argumentative move seems to be to suggest that the intentions of the people who promoted FOSTA/SESTA were good and the harm to sex workers was unexpected. I understand this from a realpolitik perspective -- the politics of the anti-trafficking space can seem complicated, and no one wants to appear to be pro-trafficking. And admitting you’ve caused harm is hard! However, again, pretending that prostitution was “accidentally included” or that FOSTA was a bill that was only aimed at ending what the law defines as sex trafficking is at best, revisionism.

Conclusion:

Most people who talk about FOSTA’s unintended consequences are not bad people, nor are they trying to erase or ignore sex workers. But the narrative that sex workers were “collateral damage” of an anti-trafficking bill is ahistorical and compounds the harm. Please, please, stop saying that the effects were unintended.

Did you find this post useful? Please throw some money at Hacking//Hustling, who has been working to cultivate a better understanding of the impacts of FOSTA. You can donate here.

Thank you to Danielle Blunt and Riana Pfefferkorn, who provided very helpful feedback on this post! All mistakes are my own.

Notes

Originally posted to Kendra's personal blog.

Filed Under: consequences, fosta, section 230, sesta, sex trafficking, sex work