Australian MP Pushes Back Against Expanded Site And Search Blocking Laws

from the my-hero dept

We've been talking for several months now about the amendments to Australian copyright law currently under consideration by the government there. As a refresher, Australia put a site-blocking policy in place several years ago. That policy has been praised by both government and rightsholders as effective, even as those same interests insist that it doesn't do enough to stop piracy down under. As a result, the government is currently considering amendments to Australian copyright law that would make it easier for extra-judicial blocks of "piracy sites" and their mirrors, and includes demands that search engines like Google participate in this censorship as well, despite the fact that blocking search returns relevant to a user request is the opposite of what Google does. Predictably, the amendments to the law have wide support across political parties in Australia, and pretty much everyone is sure it's going to pass as is.

A key aspect of this is that all of the focus is on piracy and how to stop or minimize it, regardless of whatever negative effects that might have on ISPs and a free and open internet. There has been zero focus thus far on whether these legal mechanisms are really the optimal route to addressing this problem. This week, however, one Australian MP decided to grab a microphone and finally take rightsholders to task.

An expansion of Australia's piracy site-block laws is "a form of regulatory hallucinogen", Labor MP Ed Husic has said, adding that the voice of the consumer needs to be heard and rights holders should be less "resistant" to digitisation and reforming their systems.

"The big challenge is the freeing-up of copyright to ensure that innovation can spread more widely and to face up to big rights holders and the types of hysterical arguments we get in this space," Husic said. "These rights holders think that by constantly using legal mechanisms through this place and elsewhere, piracy will disappear. The reality is that piracy is a reflection of a market failure."

It's rare that a member of government gets things so absolutely correct on this subject. Far too many rightsholders seem to only have one arrow in their quiver, and that's the legislative or judicial arrow. What has actually occurred is that a disruptive force, the internet, has changed the possibilities and demand for certain types of content. Does anyone remember the consumers of these products, legitimate and otherwise? They are supposed to have a voice in government as well, and yet they are consistently ignored. But, really, it's the public and the internet that are driving this whole discussion. How is it possible that they don't have a seat at the table?

Husic goes on to ask the same question, all while poking lawmakers in the eye for bowing to the wrong constituency.

"As lawmakers, just because we might get a selfie with Richard Roxburgh -- I love Rake as much as anyone else -- or a political party gets a donation from a rights holder, does not mean that we should stop looking at how to make the types of reforms that balance the needs of creatives and the needs of producers versus the needs of consumers," he said.

The sad part of all of this is that Husic is the exception, not the rule. When you read that these amendments will almost certainly pass in Australia, that prediction is almost certainly correct. And, when that happens, exactly whose interests will be served? The answer, I think, cannot possibly be "the public's."

Filed Under: australia, copyright, ed husic, innovation, intermediary liability, search blocking, site blocking

Shitty Man Shows How Shitty Men Can Shit On Free Speech By Suing Over The Shitty Media Men List

from the shitty-lawsuits dept

In the wake of the revelations about Harvey Weinstein, writer Stephen Elliott's name ended up on a Google doc called Shitty Media Men, along with the information "Rape accusations, sexual harassment [sic], coercion, unsolicited invitations to his apartment, a dude who snuck into Binders???" listed under the column heading "ALLEGED MISCONDUCT" and the additional note that, "Multiple women allege misconduct." He has now sued Moira Donegan, the owner of the Google doc, and dozens of anonymous third-party contributors to the list for defamation, as well as intentional and negligent infliction of emotional distress. He has also now cemented his reputation as a very shitty man.

First, let me say that I do not call Stephen Elliott a shitty man because of what posters to the Shitty Media Men list wrote about him. He's shitty for filing this lawsuit against the host of and contributors to the list, seeking to chill the speech of those who would speak out against bad behavior. He's shitty for threatening to unmask people who had exercised their right to speak anonymously to warn others of potential harm.

Plaintiff will know, through initial discovery, the names, email addresses, pseudonyms and/or “Internet handles” used by Jane Doe Defendants to create the List, enter information into the List, circulate the List, and otherwise publish information in the List or publicize the List. Through discovery, Plaintiff can obtain the email address information, Google account, Internet Protocol (“IP”) address assigned to the accounts used by the Jane Doe Defendants by the account holders’ Internet Service Provider (“ISP”), email accounts and/or Google accounts, on the date and time at which the Posts were published and/or information was entered into the List. Plaintiff intends to subpoena the shared Google spreadsheet metadata for the List, email accounts, Google accounts and ISPs in order to learn the identity of the account holders for the email addresses and IP addresses.

He's shitty for leaving everyone vulnerable to continued abuse, from any source, since by deterring speech about abuse, abuse will now be so much harder to check. And he's shitty for using disproportionate power to quell those who tried to resist him (which, of course, seems an odd play for someone who wants people to believe that claims he did the same sexually could not possibly have been true).

Because his power here is indeed unequal. The pen may be mightier than the sword, but it is no match for a lawsuit. A lawsuit targeting speech is giant tax on expression, extracting an immense cost for what should have been free to do. Speech isn't free when one must pay a minimum of five or six figures – if not more – to defend the right to "freely" express it.

This story therefore touches on a number of the issues we often talk about here at Techdirt highlighting this recurrent power imbalance that keeps threatening to make the right to free speech illusory. There's the chilling effect of the suit itself, both on these defendants and anyone else who might now be prompted to rethink speaking out in the future. There's the attack on anonymous speech, upon which public discourse often depends. And then there's the targeting of the intermediary in order to pressure those who enable others' speech to cease doing so.

That last line is an aspect to the suit particularly worth noting here. One of the points we keep making is that Section 230 isn't just about Facebook (or Twitter, or Google, or Yelp, etc…); it's about regular Internet users. This suit exemplifies why it's so important to preserve its critical protections for intermediaries of all sorts: because someday you, too, may want to facilitate the exchange of important information in a Google doc, and you might not want to be sued for it.

"In the beginning, I only wanted to create a place for women to share their stories of harassment and assault without being needlessly discredited or judged," Donegan wrote in The Cut in January 2018. "The hope was to create an alternate avenue to report this kind of behavior and warn others without fear of retaliation."

In this case, the progenitor of the Google doc was an intermediary enabling other people to express themselves through the online service – in this case, the Google doc – she provided. Section 230 allows that intermediaries can come in all sorts of shapes and sizes, because its immunity is provided broadly, to any provider of an "interactive computer service," which is "any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server." That's what Donegan did with her Google doc: provide access to software to multiple users. If anything is somehow wrong with the content they contributed through this service, then they can be held responsible for it. But per Section 230, not Donegan.

(In his complaint Elliott does accuse Donegan of editing the spreadsheet, but not in ways that transcend the typical editing activity of an intermediary protected under Section 230.)

And it shouldn't be the other contributors either. None actually accused him of rape; the statement in question reflected only that that there had been accusations of it. Elliott's complaint would have Donegan and any author of this spreadsheet entry bear the burden of proving that he actually raped someone in order not to be liable to him. But that's not how defamation law works, nor is it how it should work. As the Supreme Court observed in New York Times v. Sullivan:

A rule compelling the critic … to guarantee the truth of all his factual assertions—and to do so on pain of libel judgments virtually unlimited in amount— leads to a comparable "self-censorship." Allowance of the defense of truth, with the burden of proving it on the defendant, does not mean that only false speech will be deterred. Even courts accepting this defense as an adequate safeguard have recognized the difficulties of adducing legal proofs that the alleged libel was true in all its factual particulars. Under such a rule, would-be critics … may be deterred from voicing their criticism, even though it is believed to be true and even though it is in fact true, because of doubt whether it can be proved in court or fear of the expense of having to do so. They tend to make only statements which "steer far wider of the unlawful zone." The rule thus dampens the vigor and limits the variety of public debate.

The burden is therefore on the plaintiff to show that the statement was false or was made in reckless disregard of the truth. Even if he were to be considered a private, rather than public, figure the burden would still be on him to show that the defendants at least demonstrated a negligent, rather than reckless, disregard for the truth, but it would be strange for him to argue his own cultural irrelevance in order to be able to prevail on that lower standard. His complaint itself laments a loss of stature that suggests he was at least a limited-purpose public figure, and thus required to prove "actual malice," which, despite some handwringing about Donegan's public feelings about other terrible men, the complaint doesn't seem to do. The lawsuit is also over speech about a matter of public importance, which in New York would also prompt the higher standard, which likely would need to be met before unmasking the speakers.

[U]nder prior case law, Google cannot be compelled to reveal the identity of an anonymous poster unless and until Elliott can prove that the posts were libelous, said Paul Levy, an attorney with Public Citizen who has helped establish precedent for when a court can compel an internet provider to identify an anonymous user. So if Elliott's attorneys want to identify the list contributors, they'll have to prove his case of libel before Google can be compelled to provide the information.

Furthermore, the only "truth" at issue here is whether he had ever been accused of rape. There could have been a false accusation and the statement would still be true. But what Elliott really wants is for the court to grant him a "get out of rape accusation free" card, if these anonymous speakers cannot substantiate his guilt. Which is what renders this lawsuit the piece of crap SLAPP that it is, and illustrates why a strong anti-SLAPP law needs to apply. The complaint was filed in New York, which has an infamously limited anti-SLAPP law, but it's notable that, per the complaint, Stephen Elliott lives in Louisiana, where there is a decently strong anti-SLAPP law. If that law is found to apply, it could lead to Elliott having to pay everyone else's legal bills.

But even so, the essential truth will remain. Even if Elliott had never before victimized women, this lawsuit is an attempt to victimize them now by burdening them with a cripplingly expensive and impossible task. And for this behavior he indeed is a shitty man.

Filed Under: anonymity, anonymous speech, anti-slapp, bullying, cda 230, defamation, intermediary liability, me too, moira donegan, shitty media men, slapp, stephen elliott, unmasking

Facebook, Whose Support Made FOSTA Law, Now Sued For Facilitating Sex Trafficking Under FOSTA

from the like-we-couldn't-have-predicted-that dept

If you don't remember, the momentum around FOSTA/SESTA was that it was going nowhere, until suddenly Facebook did an about face and abruptly (and strongly) supported the bill, leading Congress to incorrectly believe that the tech industry now supported the bill. Facebook's Sheryl Sandberg, who became the public face of supporting the bill, insisted that there were no problems with the bill, that it wouldn't create any real problems for internet companies, and that it would be useful in the fight against sex trafficking.

At the time, we pointed out that under the broad definitions in the law, it certainly appeared that Facebook was potentially violating the bill in multiple ways. Even if it turned out that courts rule that the vague language of FOSTA should be construed much more narrowly, the damage is already done, as some companies will have to battle the issue out in court.

And... perhaps not surprisingly... one of the first such cases has been brought against Facebook itself along with Backpage, Backpage's execs and some local motels (hat tip to Eric Goldman). As you can see, it's a "Jane Doe" lawsuit filed against Facebook in Harris County, Texas, and the core of the lawsuit is basically tying Facebook to Backpage:

Social Media companies, websites, and the hotel industry should never place their quest for profits above the public good. Human trafficking has hit epidemic proportions in our communities, and it has had a devastating effect on the victims and a crushing financial effect on our world. Driven by profit, social media giants like Facebook and sex brokers like Backpage have treated children as a commodity.

The participants in this venture of abuse share a value--profit. And the bottom line comes before all else--including the safety of children in our community. Facebook's profic (sic) metric is "connections." Backpage charged fees to broker sex. And hotels, like the one in this lawsuit, look the other way while children, like Jane Doe, are abused, exploited, and made available for sex acts to multiple perpetrators.

While pimps and sex buyers are sometimes criminally prosecuted, the social media companies, hotel industry, and Backpage have been able to escape taking responsibility for the harms and losses they cause these victims and our community. For years, businesses have been providing predators unrestricted means to prey on victims. Not anymore.

The specific issue relating to Facebook is that the plaintiff "Jane Doe" was recruited from Facebook, and that makes it vicariously liable under FOSTA.

The use of Facebook and the Backpage website for the advertising and recruitment of minors for sex was so pervasive and known to Facebook and the Backpage Defendants that it cannot be said such conduct was so unforeseen as to prevent Facebook and the Backpage Defendants from being liable for such conduct. Rather, Facebook and the Backpage Defendants knowingly aided and assisted sex traffickers, including the sex trafficker who recruited Jane Doe from Facebook and posted the advertisements of Jane Doe on the Backpage website. Facebook and the Backpage Defendants knowingly benefited from this illegal and immoral activity.

In a section about the "allegations regarding Facebook" the complaint makes Facebook out as if it were just as bad as Backpage. Here's just a snippet:

With each passing day, the gateway to our community's children is increasingly social media--and Facebook in particular.

People, including children, connecting with their friends, family, and communities are not the only ones passing through Facebook's gateway.

For years now, Facebook has permitted sex traffickers unfiltered access to the most vulnerable members of our society.

It has continually been used to facilitate human trafficking by allowing sex traffickers an unrestricted platform to stalk, exploit, recruit, groom, recruit, and extort children into the sex trade.

And, yes, it says "recruit" twice in there. This is, of course, hogwash. Facebook connects people, but it gives those users a tremendous amount of control over who is able to contact them -- meaning it is hardly "unrestricted." Either way, because of actions of someone else on Facebook, Facebook should be held liable according to this lawsuit:

The Facebook Friend said Jane Doe could make enough money to pay the rent on her own apartment. The Facebook fried offered to pick her up and console her about her disagreement with her mother.

Within hours of meeting the Facebook Friend, photos were taken of Jane Doe and were posted on Backpage, and then was raped, beaten, and forced into further sex trafficking.

Jane Doe had never been made aware of the dangers of sex traffickers on Facebook.

Jane Doe had never been made aware of the warning signs of sex traffickers on Facebook.

During the whole time that Jane Doe's Facebook Friend used Facebook, Facebook took no steps to verify his identity.

To date, Facebook has taken no reasonable steps to mitigate the use of Facebook by sex traffickers or exploiters using its platform.

Millions of minors like Jane Doe remain at risk every day when they simply log onto Facebook.

So... given those details, it certainly seems like there's an obvious criminal case to be brought against this "Facebook friend." Shouldn't that be the focus? Also, there are lots of places to learn how to be safe online. Why is it Facebook's fault that this individual didn't learn the basics of internet safety? The story is sad, obviously, but blaming Facebook for it is ridiculous. But thanks to Facebook's own support of FOSTA, it's at least now possible. In the causes of action, Doe claims that Facebook had a duty to "warn of the dangers of grooming" and failing to do that makes it liable. That seems like a stretch, but again, thanks to FOSTA it's not an open and shut case like it would have been earlier.

Remember, back when some of us pointed out that under FOSTA almost any website might face crushing liability? But supporters of the bill insisted that was a ridiculous read on the bill, because it would only apply to "bad actors" who "knowingly facilitated sex trafficking." We kept being told that this would never apply to sites like Facebook, and even had people tell us that Facebook's own support of the bill somehow "proved" that the law would never be used against Facebook.

And, yet, here we are with Facebook in court, with a victim of sex trafficking claiming that Facebook is liable.

Facebook may get the case tossed -- and hopefully that is the end result -- but it has already created a legal headache for the company, just as many of us predicted back when the bill was being debated. Also, I can't wait for all of those who insisted that FOSTA would never be used against sites like Facebook to either (a) refuse to comment on this or (b) now insist that Facebook was, indeed, a "bad actor" despite denying it during the debate over FOSTA and SESTA.

Filed Under: cda 230, fosta, intermediary liability, section 230, sex trafficking
Companies: backpage, facebook

Federal Court Dumps Another Lawsuit Against Twitter For Contributing To Worldwide Terrorism

from the legal-definition-of-insanity dept

The lawsuits against social media companies brought by victims of terrorist attacks continue to pile up. So far, though, no one has racked up a win. Certain law firms (1-800-LAW-FIRM and Excolo Law) appear to be making a decent living filing lawsuits they'll never have a chance of winning, but it's not doing much for victims and their families.

The lawsuits attempt to route around Section 230 immunity by positing the existence of terrorists on social media platform is exactly the same thing as providing material support for terrorism. But this argument doesn't provide better legal footing. No matter what approach is taken, it's still plaintiffs seeking to hold social media companies directly responsible for violent acts committed by others.

Eric Goldman has written about another losing effort involving one of the major players in the Twitter terrorism lawsuit field, Excolo Law. Once again, the plaintiffs don't present any winning arguments. The California federal court doesn't even have to address Section 230 immunity to toss the case. The Anti-Terrorism Act allegations are bad enough to warrant dismissal.

Here's what the court has to say about the direct liability arguments:

The FAC [First Amended Complaint] plausibly alleges that ISIS used Twitter to reach new followers, raise funds, and incite violence. It also adequately alleges that Twitter knew ISIS-affiliated users were posting these communications, and that it made only minimal efforts to control them.

Nevertheless, the direct relationship link is missing. Most of the allegations are about ISIS's use of Twitter in general. The relatively few allegations involving Twitter that are specific to the attacks that killed plaintiffs' family members also provide little more than generic statements that some of alleged perpetrators of the attacks were "active" Twitter users who used the platform to follow "ISIS-affiliated Twitter accounts" and otherwise "communicate with others." Nothing in the FAC rises to the level of plausibly alleging that plaintiffs were injured "by reason of" Twitter's conduct. Consequently, the direct ATA claims are dismissed.

The indirect liability route doesn't fare any better:

The FAC does not allege that Twitter was "aware" that it was "assuming a role in" the terrorists' attacks in Europe. See id. It does not allege that Twitter encouraged ISIS to carry out these attacks or even knew about them before they occurred. At most, the FAC alleges that Twitter should have known ISIS was planning an attack and that it ignored the possible consequences of letting terrorists operate on its platform. That is in effect an allegation of recklessness, but JASTA [Justice Against Sponsors of Terrorism Act] requires more. Although plaintiffs are correct that Congress referred in its statement of findings and purpose to those who "knowingly or recklessly contribute material support or resources" to terrorists, JASTA § 2(a)(6) (emphasis added), the plain language of Section 2333 reaches only those "knowingly providing substantial assistance." 18 U.S.C. § 2333(d)(2). This clear statutory text controls.

There's no plausible conspiracy claim either. If this argument was given credence by the court, Twitter would be a co-conspirator in any criminal activity carried out by its users.

Nothing in the FAC establishes an agreement, express or otherwise, between Twitter and ISIS to commit terrorist attacks. Plaintiffs point to Twitter's terms of service that every user is subject to, but while that clearly is an "agreement," it is hardly relevant to a terrorist conspiracy. No other plausible agreement is mentioned in the FAC.

The plaintiffs are given one more chance to amend their complaint, but these are allegations that can't be massaged into victorious arguments. The problem that continues to be talked around in these lawsuits is that you cannot hold a social media platform responsible for the actions of its users. If the plaintiffs drop the ATA arguments, they're just going to run into Section 230 immunity. While the acts of terrorism were horrific and drastically affected the lives of the families of those killed, suing Twitter, Facebook, et al over these acts doesn't do anything for the plaintiffs but take time and money away from those who've already lost loved ones.

I'm not suggesting the law firms engaging in these lawsuits are lying to plaintiffs about their chances or encouraging futile litigation. I certainly would hope they aren't engaged in any of the above because that would mean they're preying on hurting people to earn income. But this steady stream of lawsuits -- much of it emanating from two law firms -- seems to suggest a level of intellectual dishonesty that's especially unseemly given the underlying circumstances.

Filed Under: blame, cda 230, intermediary liability, lawsuits, material support, social media, terrorism
Companies: excolo law, twitter

Thanks To Copyright, We Already Know How Aggressive Content Moderation Works: And It's A Disaster

from the lessons-learned dept

One of the reasons why I'm so adamant about the negative impacts on free speech from making internet platforms liable for the speech of their users, or even just by pushing for greater and greater content moderation by those platforms, is that this is not a theoretical situation where we have no idea how things will play out. We have reams and reams of evidence, just in the US alone (and plenty outside of the US) by looking at the copyright world. Remember, while CDA 230 makes platforms immune from a civil lawsuit regarding content posted by users or for any moderation choices regarding that content, it exempts intellectual property law (and criminal law). On the copyright side, we have a different regime: DMCA 512. Whereas CDA 230 creates a broad immunity, DMCA 512 creates a narrower "safe harbor" where sites need to meet a list of criteria in order to be eligible for the safe harbor, and those criteria keep getting litigated over and over again. Thus, we have quite a clear parallel universe to look at concerning what happens when you make a platform liable for speech -- even if you include conditions and safe harbors.

And it's not good.

Corynne McSherry, EFF's legal director has put together an excellent list of five lessons on content moderation from the copyright wars that should be required reading for anyone looking to upset the apple cart of CDA 230. Incredibly, as someone who lives and breathes this stuff every day, it's quite incredible how frequently we hear from people who haven't looked at what happened with copyright, who seem to think that the DMCA's regime is a perfect example of what we should replace CDA 230 with. But... that's only because they have no idea what a complete and total clusterfuck the copyright/DMCA world has been and remains. Let's dig into the lessons:

1. Mistakes will be made—lots of them

The DMCA’s takedown system offers huge incentives to service providers that take down content when they get a notice of infringement. Given the incentives of the DMCA safe harbors, service providers will usually respond to a DMCA takedown notice by quickly removing the challenged content. Thus, by simply sending an email or filling out a web form, a copyright owner (or, for that matter, anyone who wishes to remove speech for whatever reason) can take content offline.

Many takedowns target clearly infringing content. But there is ample evidence that rightsholders and others abuse this power on a regular basis—either deliberately or because they have not bothered to learn enough about copyright law to determine whether the content they object to is unlawful. At EFF, we’ve been documenting improper takedowns for many years, and highlight particularly egregious ones in our Takedown Hall of Shame. 

As we have already seen, content moderation practices are also rife with errors.

There are all different kinds of "mistakes" embedded here as well. One is just the truly accidental mistakes, but it happens quite frequently when you're dealing with billions of pieces of content. Even if those mistakes only happen 0.01% of the time, you still end up with a ton of content taken down that should remain up. That's a problem.

But the larger issue, as Corynne points out, is abuse. If you give someone a tool to take down content, guess what they do with it? They take down content with it. They often don't care -- even a little bit -- that they're using the DMCA for non-copyright purposes. They just want the content to come down for whatever reasons, and the DMCA provides the tool. Imagine that, but on steroids, in other contexts.

2. Robots aren’t the answer

Rightsholders and platforms looking to police infringement at scale often place their hopes in automated processes. Unfortunately, such processes regularly backfire.

For example, YouTube’s Content ID system works by having people upload their content into a database maintained by YouTube. New uploads are compared to what’s in the database and when the algorithm detects a match, copyright holders are informed. They can then make a claim, forcing it to be taken down, or they can simply opt to make money from ads put on the video.

But the system fails regularly. In 2015, for example, Sebastien Tomczak uploaded a ten-hour video of white noise. A few years later, as a result of YouTube’s Content ID system, a series of copyright claims were made against Tomczak’s video. Five different claims were filed on sound that Tomczak created himself. Although the claimants didn’t force Tomczak’s video to be taken down they all opted to monetize it instead. In other words, ads on the ten-hour video could generate revenue for those claiming copyright on the static.

Again, this has been an incredibly popular claim -- most frequently from people who are totally ignorant both of how technology works (the "well, you nerds can nerd harder" kind of approach) to those who are totally ignorant of what a complete clusterfuck existing solutions have been. ContentID is absolutely terrible and has a terrible error rate and it is, by far, the best solution out there.

And that's just in the narrow category of copyright filtering. If you expect algorithms to be able to detect much more amorphous concepts like bullying, terrorist content, hate speech and more... you're asking for much higher error rates... and a lot of unnecessary censorship.

3. Platforms must invest in transparency and robust, rapid, appeals processes

With the above in mind, every proposal and process for takedown should include a corollary plan for restoration. Here, too, copyright law and practice can be instructive. The DMCA has a counternotice provision, which allows a user who has been improperly accused of infringement to challenge the takedown and, if the sender doesn’t go to court, the platform can restore to content without fear of liability. But the counternotice process is pretty flawed: it can be intimidating and confusing, it does little good where the content in question will be stale in two weeks, and platforms are often even slower to restore challenge material. One additional problem with counter-notices, particularly in the early days of the DMCA, was that users struggled to discover who was complaining, and the precise nature of the complaint. 

The number of requests, who is making them, and how absurd they can get has been highlighted in company transparency reports. Transparency reports can both highlight extreme instances of abuse—such as in Automattic’s Hall of Shame—or share aggregate numbers. The former is a reminder that there is no ceiling to how rightsholders can abuse the DMCA. The latter shows trends useful for policymaking. For example, Twitter’s latest report shows a 38 percent uptick in takedowns since the last report and that 154,106 accounts have been affected by takedown notices. It’s valuable data to have to evaluate the effect of the DMCA, data we also need to see what effects “community standards” would have.

Equally important is transparency about specific takedown demands, so users who are hit with those takedowns can understand who is complaining, about what. For example, a remix artist might include multiple clips in a single video, believing they are protected fair uses. Knowing the nature of the complaint can help her revisit her fair analysis, and decide whether to fight back.

Another point on this is that, incredibly, those who support greater content policing frequently are very much against great transparency. In the copyright space, the legacy companies have often hit back against transparency and complained about things like the Lumen Database and the fact that Google publishes details of takedown demands in its transparency reports -- with bogus claims about how such transparency only helps infringers. I fully expect that if we gut CDA 230, we'll see similarly silly arguments against transparency.

4. Abuse should lead to real consequences

Congress knew that Section 512’s powerful incentives could result in lawful material being censored from the Internet without prior judicial scrutiny. To inhibit abuse, Congress made sure that the DMCA included a series of checks and balances, including Section 512(f), which gives users the ability to hold rightsholders accountable if they send a DMCA notice in bad faith.

In practice, however, Section 512(f) has not done nearly enough to curb abuse. Part of the problem is that the Ninth Circuit Court of Appeals has suggested that the person whose speech was taken down must prove to a jury the subjective belief of the censor—a standard that will be all but impossible for most to meet, particularly if they lack the deep pockets necessary to litigate the question. As one federal judge noted, the Ninth Circuit’s “construction eviscerates § 512(f) and leaves it toothless against frivolous takedown notices.” For example, some rightsholders unreasonably believe that virtually all uses of copyrighted works must be licensed. If they are going to wield copyright law like a sword, they should at least be required to understand the weapon.

This gets back to the very first point. One of the reasons why the DMCA gets so widely abused any time anyone wants to take down anything is because there's basically zero penalty for fling a bogus report. There is merely the theoretical penalty found in 512(f) which the courts have effectively killed off in most (hopefully not all) cases. But, again, it's even worse than it seems. Even if there were a better version of 512(f) in place, how many people really want to go through the process of suing someone just because they took down their cat videos or whatever? In many cases, the risk is exceptionally low because even if there were a possible punishment, no one would even pursue it. So if we're going to set up a system that can be abused -- as any of these systems can be -- there should be at least some weight and substance behind dealing with abusive attempts to censor content.

5. Speech regulators will never be satisfied with voluntary efforts

Platforms may think that if they “voluntarily” embrace the role of speech police, governments and private groups will back off and they can escape regulation. As Professor Margot Kaminski observed in connection with the last major effort push through new copyright enforcement mechanisms, voluntary efforts never satisfy people speech censors:

Over the past two decades, the United States has established one of the harshest systems of copyright enforcement in the world. Our domestic copyright law has become broader (it covers more topics), deeper (it lasts for a longer time), and more severe (the punishments for infringement have been getting worse).

… We guarantee large monetary awards against infringers, with no showing of actual harm. We effectively require websites to cooperate with rights-holders to take down material, without requiring proof that it's infringing in court. And our criminal copyright law has such a low threshold that it criminalizes the behavior of most people online, instead of targeting infringement on a true commercial scale.

In addition, as noted, the large platforms adopted a number of mechanisms to make it easier for rightsholders to go after allegedly infringing activities. But none of these legal policing mechanisms have stopped major content holders from complaining, vociferously, that they need new ways to force Silicon Valley to be copyright police. Instead, so-called "voluntary efforts" end up serving as a basis for regulation. Witness, for example, the battle to require companies to adopt filtering technologies across the board in the EU, free speech concerns be damned.

Over and over we've tried to point this out to the platforms that have bent over backwards to please Hollywood. It's never, ever enough. Even when the platforms basically do exactly what was asked of them, those who wish to censor the networks always, always, always ask for more. That's exactly what will happen if we gut CDA 230.

Again, it's worrisome that the debates over changing intermediary liability rules don't seem to even acknowledge the vast amount of empirical evidence we have in the copyright context. And that's maddening, given that the copyright world shows just how broken the system can become.

Filed Under: ai, cda 230, content moderation, copyright, dmca 512, free speech, intermediary liability, takedowns

A Mix Of Good And Bad Ideas In NAFTA Replacement

from the not-great,-but-some-useful-concepts dept

Let's start with the simple concept that it's not at all clear why intellectual property and intermediary liability issues should even be in various free trade agreements, other than to acknowledge that the legacy copyright industry has spent decades demanding that they be included in those agreements. I've mentioned it many times in the past, but the book Information Feudalism should be required reading on this subject, showing how copyright interests effectively hijacked the international trade agreement process to force through domestic policies they wished to have. The internet community mostly ignored the trade agreement process for years, allowing the RIAAs and MPAAs of the world to run rampant and get more or less whatever they wanted in smokey backrooms, before running home to Congress demanding that we pass new laws to "live up to our international obligations."

When NAFTA was originally passed, this practice wasn't as common. Nowadays, it's more or less considered mandatory to include these issues in trade agreements. This is unfortunate for a large number of reasons, but it does mean that if these issues are going to show up in trade agreements, at least they ought to come out in a way that isn't harmful.

And that takes us to NAFTA, which our current president demanded be renegotiated for no clear reason other than he was sure it was bad and we were being ripped off. And, voila, we now have a new agreement called the USMCA agreement designed to replace NAFTA (though I agree that we really missed a huge opportunity in not calling it the CAMUS agreement (or at least *something* that is pronounceable). And, because the RIAA and MPAAs of the world forced these issues into trade agreements, this new USMCA has a bunch of issues that have literally zero to do with "trade" but could have pretty widespread impacts on innovation and the internet.

Michael Geist has the best overview I've seen of the agreement, highlighting both the good and bad aspects of the agreement. On the bad side of the ledger, it forces Canada to extend its copyright terms from "life plus 50" to "life plus 70." Thankfully, it appears the weird USTR confusion over the earlier idea that it was going to require life plus 75 years is now gone. But requiring life plus 70 is already problematic. It's especially bad for Canada in that it will involve a massive taking of the public domain, and locking it up for two extra decades for no good reason. But it's also bad for the US and Mexico in that it effectively blocks any chance of rolling back copyright terms to more reasonable levels (a proposal that even the US Copyright Office appeared to support in years' past).

Also bad: expanding the data protection term of biologics. This is something that the US has pushed for in other agreements over the years and it's really dangerous for basic science and innovation in the drug space. Big pharma companies want it because it allows them to extract monopoly rents, but it harms our ability to actually understand the efficacy of drugs and to make better drugs. We've also discussed how this can lead to real harm in silencing people pointing out health risks of certain drugs.

We also remain concerned about the vague "anti-counterfeiting" language that has been used in the past to justify some truly draconian policies that could create huge problems for innovation and privacy.

On the more neutral-to-possibly-bad side of the ledger, the agreement does allow Canada to retain its current "notice-and-notice" copyright policy, as opposed to a "notice-and-takedown" policy for copyright infringement that both the US and Mexico have. This is good, because Canada's notice-and-notice policy was the result of many years of difficult negotiations and an attempt to do something not as draconian and problematic on questions of free speech than the notice-and-takedown system that we see abused nearly every day here in the US and elsewhere. Unfortunately, what puts this in the "neutral-to-possibly-bad" category is that Canada is only allowed to keep notice-and-notice because it's effectively grandfathered in. The agreement more or less blocks the US or Mexico from moving to such a system.

This is ridiculous. Just as we're getting evidence of how much better a system notice-and-notice is compared to notice-and-takedown, suddenly the US and Mexico will be barred from moving to such a system, even if the evidence shows that it's better for everyone? That makes no sense at all.

On the neutral-to-possibly good side of the ledger, despite concerns that it was missing in earlier drafts and reports, the agreement does include a provision on what they refer to as "limitations and exceptions," but which we note are really user rights such as fair use. It's good that this is there. But... it's less good that it uses the traditional "three steps test" found in Berne Convention. That's concerning because at least some interpret the three step test to limit fair use (and some even argue -- incorrectly -- that US fair use is not permitted under the three step test). So, the "good" part is that the agreement includes something on user rights, but the bad part is that it defaults to the three step test which could be used to significantly limit just how fair use is applied.

Finally, on the "good" side of the ledger, the USMCA does provide language establishing strong intermediary liability protections:

no Party shall adopt or maintain measures that treat a supplier or user of an interactive computer service as an information content provider in determining liability for harms related to information stored, processed, transmitted, distributed, or made available by the service, except to the extent the supplier or user has, in whole or in part, created, or developed the information.

This is useful, especially as CDA 230 and DMCA 512 are under attack. Again, I'm disappointed that we should need to use "trade agreements" to argue this point, but since others are trying to undermine intermediary liability through trade agreements, there needs to be some pushback, and this does establish that in a clear manner. Hilariously, a former RIAA exec who was instrumental in getting copyright expansions placed into trade agreements around the globe is now whining about how awful it is that intermediary liability protections are found in this new agreement, citing concerns raised by plenty of people who support these protections, but who in the past protested efforts to expand copyright rules through those trade agreements. What a hypocritical position for him to take. Dude, you were the one who forced these issues into trade agreements: don't freak out and cry about it when you face some level of pushback in the form of policies you dislike. You made your bed.

In the end, again, it's disappointing that these issues should be in a trade agreement at all. None of this really has anything to do with "trade" in the traditional sense. But they are in this agreement, and thus we should hope that they get the various issues right. The inclusion of intermediary liability protections is clearly a good result if you must include these kinds of provisions, but the copyright and biologic expansions are still incredibly problematic. Unfortunately, it seems likely that the response from the USTR or anyone else will be "well, you win some, you lose some" rather than fixing the problems.

Filed Under: biologics, canada, cda 230, copyright, copyright term, intermediary liability, mexico, nafta, notice and notice, notice and takedown, section 230, trade agreements, usmca

Registrar Killing Zoho Over A Few Phishing Claims Demonstrates The Ridiculousness Of Having Registrars Police The Internet

from the this-is-not-good dept

For years, we've pointed out the dangers of the attempts to move the "policing" function up the internet stack (or down the internet stack, depending on your perspective) from the end-user internet services deeper to infrastructure players. We just recently warned about the mess that will be created by focusing on infrastructure players. Indeed, for years, we've worried about targeting domain registrars with takedown notices. There are a variety of reasons for this: first off, registrars are not at all prepared to be in the content moderation business. They just run a database. But, more importantly, their only tool to deal with these things is incredibly blunt: to effectively turn off an entire site by not allowing the URL to resolve.

And yet, there's increasing pressure for registrars to police the internet. This is mostly because of people (starting with the legacy copyright players, but others as well) over-hyping the fact that if some content/services are taken down, it just pops back up somewhere else. So, those who focus on censorship try to look further and further along the stack to see where they can block even more.

A story this week shows just how damaging this can be. Zoho is a very popular online service provider of tools for businesses. We've used Zoho a bunch at times, as they offer a really nice and fairly comprehensive suite of business apps at prices that are much more affordable than many of the larger players (while often being just as good, if not better). But earlier this week Zoho disappeared from the internet for a lot of users, after its registrar, Tierranet pulled the plug on their service, claiming it had received too many complaints of phishing attempts via Zoho. Zoho points out in response that (1) it had received a grand total of three reports from Tierranet of attempting phishing, and it had promptly removed the first two accounts and was in the process of investigating the third when all this went down, and (2) it received no warning that Tierranet was about to pull the plug on them and was given no way to reach out to the company in this emergency situation (leading the company to take to Twitter to try to get attention).

But, because Tierranet decided it needed to "police the internet" with its ridiculously blunt tool of completely removing an entire service from the internet -- despite its millions of users who rely on it for critical business services -- Zoho was put in the unenviable position of trying to explain why its entire suite of services completely disappeared. Apparently, (according to Zoho's explanation) Tierranet will automatically cut off websites after receiving three complaints -- which is astounding. It's even more astounding that a service the size of Zoho only received three such complaints. In a detailed post mortem / apology, the company says it's going to become its own registrar to avoid having anything like this happen again.

You have my assurance that nothing like this will ever happen again. We will not let our fate be determined by the automated algorithms of others. We will be a domain registrar ourselves.

But, really, every internet service out there shouldn't have to be their own registrar to avoid having someone take down their whole site for no good reason. We need to rethink this idea that someone must be policing every interaction online and that if anything bad gets through, liability and blame should flow through to everyone in the stack. It's not only a recipe for mass censorship, but for one that takes down important services by good actors.

Filed Under: domains, infrastructure, intermediary liability, phishing, points of failure, registrars
Companies: tierranet, zoho

The Bullshit Rewriting Of History To Claim FOSTA Took Down Backpage

from the not-how-it-happened dept

I was afraid that this was going to happen. If you don't recall, the official "reason" for why we needed FOSTA (originally SESTA) was that it was necessary to "take down Backpage." In the original announcement about the bill by Senator Portman, his press release quoted 20 Senators, and 11 of them mentioned Backpage.com as the reason for the bill. Not one of them seemed to mention that Backpage had already shut down its adult section months earlier. And, over the months of debate concerning FOSTA/SESTA, we noted that there was nothing in the existing law preventing federal law enforcement officials from taking down Backpage if it were actually violating the law.

And, indeed, before FOSTA was even signed into law, the DOJ seized the website and arrested its founders. Incredibly, even though Backpage was shut down before FOSTA was law, some of the bill's backers tried to credit the bill with taking down the site. The worst was Rep. Mimi Walters, who directly tried to take credit for FOSTA taking down Backpage (even though FOSTA wasn't even signed into law at the time she took credit for it).

Since then, I've been concerned that there will be an attempt to rewrite history to pretend that FOSTA was, in fact, responsible for the criminal prosecution of Backpage. And, it appears that is coming true. Last week, Buzzfeed ran a worth-reading profile of lawyer Marc Randazza, whom we've talked about plenty on this site (sometimes agreeing with him, and sometimes... not agreeing with him at all). I really don't have too much to say about the profile, except that it's unfortunate that Buzzfeed's Joseph Bernstein helps build up the myth that FOSTA was responsible for taking down Backpage:

The state still has the limited power to regulate individuals’ speech. But so too can the state pressure or mandate social platforms to limit what they publish (as it did in FOSTA/SESTA, which forced websites like Backpage to stop hosting ads for sex work, resulting in conditions that sex workers say have endangered them), and so too do social platforms govern the speech of their users.

This is really, really wrong -- and it's unfortunate, because it makes you wonder what other errors might be lurking in Bernsteins' reporting (he's normally a great reporter, but this is a pretty big error). In fact, there was an entirely different law, the SAVE Act from 2015, that made advertising sex trafficking illegal. And, it was grandstanding threats by Congress (way before FOSTA/SESTA) that made Backpage shut down its entire adult section. And it was the DOJ who took down Backpage before even FOSTA was law. So why is anyone reporting that FOSTA helped take down Backpage?

Because that's the narrative FOSTA supporters wanted from the very beginning. It's why so many of the quotes about the introduction of the bill mentioned Backpage. It's why sponsors of the bill falsely claimed Backpage was taken down thanks to FOSTA. But we shouldn't let them rewrite history like this, and reporters like Bernstein shouldn't contribute to this myth. FOSTA wasn't necessary to take down Backpage.

Filed Under: cda 230, fosta, history, intermediary liability, mrac randazza
Companies: backpage

FOSTA Provides Another Tool For Silencing People You Dislike

from the liability-for-censorship dept

For many years, we've discussed all the different ways that putting liability on intermediaries and internet platforms leads to greater censorship. The liability alone creates strong incentive to shut down speech rather than risk the potential of lawsuits and huge payments. The most obvious example of this for years has been the DMCA process, where the takedown process is quite frequently used for censorship purposes. Indeed, there are many cases where people seem to assume that they can (and should) use the DMCA to take down any content they dislike, whether or not it has anything to do with copyright at all.

This is a big part of the reason why we were so concerned with FOSTA. While the law is officially supposed to be about "sex trafficking" and "prostitution" the bill actually does absolutely nothing to help victims or go after actual traffickers. Instead, it pins massive liability (including criminal liability) on platforms if they're used for trafficking or prostitution. Given that, it now becomes much easier to take down certain content or close certain accounts by merely suggesting that they are involved in trafficking or prostitution.

Case in point: Engadget recently had a story talking about how PayPal (and to a lesser extent, Patreon) appeared to be cutting off the accounts of various ASMR YouTubers. Autonomous Sensory Meridian Response (ASMR) is a condition in which people who hear certain noises -- often whispering or soft scratching -- tend to experience a sort of "tingling" sensation. It's been talked about for years, and a bunch of YouTubers have built up followings making ASMR recordings. Earlier this year, we wrote about China banning some ASMR videos as "pornography." However, most ASMR videos are not sexual or pornographic in any way.

The Engadget article highlights how PayPal began banning a bunch of ASMR video creators, apparently in response to those creators being targeted on 8chan. The article suggests that it's pure trolling on the part of the 8chan users, but reading through the thread there, it's slightly more complicated (though, no less stupid). Many of the posts are misogynistic attacks on the women, and many claim that they're using ASMR as a front to sell "sexual content" and so some of them are arguing that they're really just trying to enforce the terms of service on PayPal and Patreon.

But there's something else -- some of the 8chan users claim that people in the ASMR community have been using the DMCA to silence critics as well, so to them, reporting the ASMR video creators is just a way of fighting back.

As is often the case, all of the motives here are suspect, and none of the narrators are particularly reliable. But what is clear is that intermediary liability laws become a weapon in online wars to try to silence people for whatever reason. The 8channers claim that the ASMR folks are sending bogus DMCA notices, which leads to (accurate or not) reports of ASMR accounts offering up sexual content, and platforms like PayPal and Patreon are then in a position where they're strongly compelled to just take those accounts down, rather than face any potential liability at all from FOSTA (or the DMCA).

Just sorting out who did what to whom in this situation is a total mess (I've wasted an afternoon reading all sorts of things on it, and it's next to impossible to get an accurate picture of what's really going on). But, it has created a world where when someone pisses you off online -- for good or bad reasons -- you can resort to claims that would place liability on the platforms if they don't cut off the users. And thus, people get cut off. No platform has the resources (or desire) to adjudicate what's really going on here at all... and thus, we just end up with widespread censorship.

This is likely to continue and expand, especially as intermediary liability protections are chipped away at on a grand scale. If you give people tools to censor, they will be abused, and those pushing to cut back on intermediary liability continue to play down the risk of widespread censorship and (especially) attacks on speech they actually support. But this kind of thing happens all the time, and punching giant holes in CDA 230 and similar laws will only make the issue much, much worse.

Filed Under: 4chan, asmr, cda 230, copyright, dmca, fosta, free speech, intermediary liability, takedowns, threats, trolls
Companies: patreon, paypal, youtube

UK MP Thinks Secret Online Groups Are The Root Of All Evil Online, Promises To Regulate 'Large Online Groups'

from the good-luck-with-that dept

It's always fascinating to me when people try to condense the complex and varied reasons why people sometimes behave badly into a single factor for blame. This is especially true online. A commonly misdiagnosed "problem" is anonymity, despite the fact that studies show anonymous online users tend to be better behaved in online flame wars, than those using their real names.

British Member of Parliament Lucy Powell has come up with her own simplistic and ridiculous explanation for why people are bad online and has a plan to do something about it. In her mind, the real problem is... "large secret online groups." She's written a whole Guardian opinion piece on it, as well as given a Parliamentary speech on it, not to mention making the rounds to snippet of the actual proposal (the full bill hasn't been placed online as far as I can tell as I type this), it appears that she wants to ban secret groups over 500 members, requiring that for any online group that has more than 500 members, the moderators and administrators would be legally required to publish public information about the group (she insists not the members), but also "to remove certain content." What kind of content isn't explicitly stated, which should set off all sorts of censorship alarm bells.

In her speech to Parliament, she mentions racism, revenge porn, jokes about the holocaust, and conspiracy theories as the types of content she's concerned about. Also... um... bad advice for autistic parents? It seems kind of all over the map. Which is why most people find this all so ridiculous. First off, you can't stop people from saying stupid stuff. That's just asking for the impossible. But it's even more ridiculous to argue that non-public groups of over 500 individuals now suddenly are going to be legally liable for censorship of amorphous "bad content."

In both her speech and the op-ed, she insists that she's just trying to make these groups have the same responsibilities as news organizations:

Our newspapers, broadcasters and other publishers are held to high standards, yet online groups, some of which have more power and reach than newspapers, are not held to any standards, nor are they accountable. It is about time the law caught up. The Bill is an attempt to take one step towards putting that right. It would make those who run large online forums accountable for the material they publish, which I believe would prevent them from being used to spread hate and disinformation, and for criminal activity. It would also stop groups being completely secret.

But that doesn't make any sense at all. Newspapers, broadcasters and publishers are not open forums for members to post their own thoughts. They are top down organizations that have an editorial process. An open forum is an entirely different thing, and it makes no sense to regulate one like the other. I mean, she actually uses the following in her speech:

If 1,000-plus people met in a town hall to incite violence towards a political opponent, or to incite racism or hate, we would know about it and deal with it. The same cannot be said of the online world.

But, under her proposal, rather than blaming the people who actually incited violence in that situation we should blame... the mayor who set up the town hall? This whole thing shows a rather astounding lack of understanding of both technology and human nature. There are already laws on the books against those who incite violence. Forcing private groups to become public, and making the organizers of those groups liable for "bad stuff" doesn't fix anything. It's also silly and impossible. Secret groups will continue to just remain secret and avoid this whole law. And, of course, is many cases, this would be impossible anyway. Who would be "responsible" for large IRC channels or Usenet groups?

I know that politicians see "bad stuff" online and feel the need to "do something" about it, but actually understanding technology would go a long way towards not making utter fools out of themselves.

Filed Under: intermediary liability, lucy powell, online groups, responsibility, secret groups, uk
Companies: facebook