How The Internet Association's Support For SESTA Just Hurt Facebook And Its Users

from the with-friends-like-these dept

The Internet Association's support for SESTA is truly bizarre. Should its support cause the bill to pass it will be damaging to every one of its members. Perhaps some members feel otherwise, but it is hopelessly naïve for any of them to believe that they will have the resources to stave off all the potential liability, including criminal liability, SESTA invites to their companies generally and to their management teams specifically, or that they will be able to deploy these resources in a way that won't destroy their user communities by over-censoring the creativity and expression they are in the business of providing forums for.

But that's only part of the problem, because what no one seems to be remembering is that Section 230 does not just protect the Internet Association's platform members (and their management teams) from crippling liability; it also protects its platform members' users, and if SESTA passes that protection will be gone.

Naturally, Section 230 does not insulate users from liability in the things they themselves use the platforms to communicate. It never has. That's part of the essential futility of SESTA, because it is trying to solve a problem that was not a problem. People who publish legally wrongful content have always been subject to liability, even federal criminal liability, and SESTA does not change that.

But what everyone seems to forget is that on certain platforms users are not just users; in their use of these systems, they actually become platforms themselves. Facebook users are a prime example of this dynamic, because when users post status updates that are open for commenting, they become intermediary platforms for all those comments. Just as Facebook provides the space for third-party content in the form of status updates, users who post updates are now providing the space for third parties to provide content in the form of comments. And just as Section 230 protects platforms like Facebook from liability in how people use the space it provides, it equally protects its users for the space that they provide. Without Section 230 they would all be equally unprotected.

True, in theory, SESTA doesn't get rid of Section 230 altogether. It supposedly only introduces the risk of certain types of liability for any company or person dependent on its statutory protection. But as I've noted, the hole SESTA pokes through Section 230's general protection against liability is enormous. Whether SESTA's supporters want to recognize it or not, it so substantially undermines Section 230's essential protective function as to make the statute a virtual nullity.

And it eviscerates it for everyone, corporate platforms and individual people alike – even those very same individual people whose discussion-hosting activity has been what's made platforms like Facebook so popular. While every single platform, regardless of whether it is a current member of Internet Association, an unaffiliated or smaller platform, or a platform that has yet to be invented, will be harmed by SESTA, the particular character of Facebook, as a platform hosting the platforms of individual users, means it will be hit extra hard. It suddenly becomes substantially more difficult to maintain these sorts of dynamic user communities when a key law enabling those user communities is now taken away, because in its absence it becomes significantly more risky for any individual user to continue to host this conversation on the material they post. Regardless of whether that material is political commentary, silly memes, vacation pictures, or anything else people enjoy sharing with other people, without Section 230's critical protection insulating them from liability in whatever these other people should happen to say about it, there are no comments that these users will be able to confidently allow on their posts without fear of an unexpectedly harsh consequence should they let the wrong ones remain.

Filed Under: cda 230, intermediary liability, sesta
Companies: facebook, internet association

Internet Association Sells Out The Internet: Caves In And Will Now Support Revised SESTA

from the and-there-goes-that dept

This morning, at about the same time as I published my article criticizing Senator Portman's decision to push forward with SESTA, an amended version of the bill was released, that has only a few small changes. Most notably it appears to improve the "knowledge" standard, which was definitely the worst part of the bill. The original bill had the following standard:

The term ‘participation in a venture’ means knowing conduct by an individual or entity, by any means, that assists, supports, or facilitates a violation...

The concern here was twofold. "Knowing conduct" means knowing of the conduct, not the outcome. That is, knowing that people can comment, not that those comments "facilitate" a violation of sex trafficking laws. That's way too broad. Separately, the "assists, supports, or facilitates" language is very broad, and includes completely passive actions (facilitates), rather than active participation.

The updated manager's amendment fixes... just some of this. It now says:

The term 'participation in a venture' means knowingly assisting, supporting, or facilitating a violation...

So now it's "knowingly" doing the other things, rather than just "knowing conduct." That's better. But, it's still very broad. And the "facilitation" is still there. Making it "knowingly facilitates" certainly helps, but it's still much broader than before. Because you have now created what is effectively a notice-and-takedown system for all kinds of content. Someone just needs to claim that your site "facilitates" sex trafficking, and now you have "knowledge." Thus, the strong incentive will be to remove, remove, remove. As we already see, the DMCA notice and takedown provisions are widely abused. Anyone who thinks this won't be widely abused has not been paying attention.

Furthermore, even "knowingly assisting, supporting, or facilitating" is going to lead to a lot of problems. We know this because we already lived through it with the DMCA. The entire 10 year fight between Viacom and YouTube was, in large part, over the definition of "knowing." Because Viacom wanted it to be a broad standard of "knowing that bad stuff happens on the platform," while YouTube argued (correctly) for an "actual knowledge" meaning, which means that you would have to have knowledge of specific content that violates the law, and then be responsible for removing that specific content. If you just make "knowing" the standard, without the "actual knowledge" part, you're in for lawsuits arguing that general knowledge makes you guilty. And that could impact tons of companies.

Take Tinder. The incredibly popular dating app is almost certainly used by some sex traffickers to traffic people against their will. Here's an article from three years ago talking about sex trafficking on Tinder. Boom. Now Tinder has "knowledge" that its platform is "assisting, supporting, or facilitating" sex trafficking. It may now be both civilly and criminally liable. So, you tell me, what should Tinder do to get rid of this liability? I'll wait. And if you think no one will bother to sue Tinder over something like this, need I remind you of the many lawsuits we've been writing about in which people are suing every social media platform because vaguely defined "terrorists" use the platform?

At least under the DMCA there's a clear "safe harbor" setup, whereby companies know the conditions under which they need to remove stuff to avoid liability. SESTA has no safe harbor language. It just says knowledge. But then what? We're in for years of litigation before courts determine what the hell this means, and that likely means startups will die. And others will never even have a chance to get off the ground.

And, once again, this doesn't solve the other giant concern we had about the original bill, which is that this will encourage platforms to stop helping law enforcement and to stop monitoring their platforms for trafficking, because doing so can constitute "knowledge" and make them liable, if they are unable to wave a magic wand and make all such conduct disappear.

In other words, the new bill is still hugely problematic.

And that's why it's extremely troublesome that the Internet Association -- the giant lobbying organization representing larger internet companies, has now come out in support of the new SESTA:

“Internet Association is committed to combating sexual exploitation and sex trafficking online and supports SESTA. Important changes made to SESTA will grant victims the ability to secure the justice they deserve, allow internet platforms to continue their work combating human trafficking, and protect good actors in the ecosystem.”

“Internet Association thanks cosponsors Sen. Portman and Sen. Blumenthal for their careful work and bipartisan collaboration on this crucially important topic and Chairman Thune and Ranking Member Nelson for their leadership of the Commerce Committee. We look forward to working with the House and Senate as SESTA moves through the legislative process to ensure that our members are able to continue their work to fight exploitation.”

I honestly am flabbergasted at this move by the Internet Association. This will do serious, serious harm to tons of internet companies. Since the Internet Association represents the bigger tech companies, perhaps they stupidly feel that they can handle the resulting mess. But smaller organizations are going to die because of the overreach of this legislation. This is a shameful move in which the Internet Association has sold its soul.

I know that many of the big internet companies were under lots of pressure this week from Congress over things like Russian ads, and it almost feels like this is their attempt to appease Congress, since some in Congress have (totally incorrectly) framed the SESTA debate as being one where tech companies were opposing efforts to stop sex trafficking. Since they're already fending off charges of helping foreign adversaries undermine elections, perhaps they felt they didn't want to add bogus claims of supporting sex trafficking to the pile.

But, this is a bad, bad decision. Yes, the manager's amendment is slightly better, but it's not good. It's bad for the internet. It's bad for free speech. And the fact that the Internet Association has stupidly put its stamp of approval on this is going to make it much more difficult to stop. Already Senators Blumenthal and Portman are pretending that because the Internet Association is on board, it means all of "tech" is on board. This is wrong and it's dangerous. The large members of the Internet Association may be able to survive this mess (though it will be costly) but smaller organizations are going to be harmed. And, in the end, it will do nothing to stop sex trafficking, and could even make the problem worse.

Filed Under: cda 230, intermediary liability, internet, knowledge, sesta, sex trafficking
Companies: internet association

Senator Portman Pushes Forward With SESTA, Despite Being Misinformed

from the this-is-bad dept

It appears that Senator Rob Portman has decided to push forward with SESTA -- the Stop Enabling Sex Traffickers Act -- a bill with problems we've discussed in great detail. Despite previous suggestions that the bill would not move forward until there were important fixes in place, it's now been announced that a committee vote will happen next week. It's possible that the bill will be amended prior to that vote, but as of right now, that's not clear. (Update: And about the time this post was published, a a manager's amendment has been pushed out. It fixes some of the most egregious problems with the bill, but leaves most of the problems intact.)

In support of this renewed push, Portman has published an opinion piece at Wired that no fact checker should have allowed. It is fully of completely faulty statements, and fairly incredible ones at that. It's kind of scary that it appears that Portman may be looking to undermine some fundamental principles of how the internet works based on a bunch of false statements. Even the title is just wrong:

How Federal Law Protects Online Sex Traffickers

It doesn't. Federal law is clear that law enforcement can go after sex traffickers. There is nothing in SESTA about going after sex traffickers. SESTA is entirely about going after internet platforms because someone may have used them in the process of "facilitating" sex trafficking.

It is a stain on our national character that sex trafficking is increasing in this country, in this century, and experts say it is happening because of the internet and the ruthless efficiency of online sex trafficking.

So much to unpack in this one sentence. As discussed earlier, the supposed epidemic of sex trafficking is grossly exaggerated. That is not to say it doesn't happen -- because it quite clearly does, and when it does happen, it's a serious problem. But Portman specifically has massively exaggerated the scope of the problem, and when you do that it's easier to support ridiculously overbroad "solutions" that would actually turn the small problem into a much bigger problem.

Sex trafficking has moved from the street corner to the smartphone, and online sex trafficking has predominately occurred through one website: Backpage.com.

And, as explained multiple times, if Backpage has, in fact, broken the law, there are already laws to deal with it. Backpage itself has already shut down its adult section (which only became big after politicians pressured Craigslist to do the same -- suggesting that chasing traffickers from platform to platform won't do much to stop trafficking). Just a few years ago Congress passed the SAVE Act, specifically targeting Backpage. It has not been used. Instead of passing another law, perhaps Portman should be asking why it hasn't been used? Similarly, CDA 230 has never covered federal crimes. The DOJ has always been able to target Backpage if it was violating the law (and it's been reported that the DOJ already has a grand jury investigation going into Backpage's actions). So why do we need a new law?

Headlines tell the tragic stories: In March 2013, police reported that a Miami pimp forced a teen to tattoo his name on her eyelids. In June 2017 in Chicago, feds charged a man for prostituting a 16-year-old girl before her murder. That same month, three people were accused of pimping a pregnant teen for sex.

All of these stories are horrible. But all of them involve criminals who were caught, with some of the evidence coming from Backpage. So, it seems like a bigger question may be: why aren't the police working harder to scan Backpage for evidence of these crimes and stopping them earlier? In the past, we've noted that law enforcement has successfully used these sites as tools to track down pimps and traffickers. It seems so odd to focus all of the attention on websites rather than the actual traffickers. It's almost as if Portman is trying to take the blame away from the traffickers themselves.

These heinous crimes, and countless others, involve Backpage, and yet the website has repeatedly evaded justice for its role in child sex trafficking.

Because Backpage wasn't doing the trafficking. And again, if they were, law enforcement is already able to go after the platform.

Despite these facts, courts have consistently ruled that a federal law called the Communications Decency Act protects Backpage from liability for its role in sex trafficking. This 21-year-old law was designed to ensure websites aren’t held liable for crimes others commit using their website. The legislation has an important purpose, but now, because of broad legal interpretations, it is used as a shield by websites that facilitate the sale of women and children for sex.

This is both wrong and a sleight of hand. First, no court has said that Backpage is protected from its role in sex trafficking. If Backpage is actively involved in the sex trafficking itself, it does not qualify for CDA 230 protections. And, again, even without that, there is no immunity in CDA 230 for federal crimes (and, again, the DOJ has a grand jury going on this). The fact that Portman is so proactively misrepresenting nearly everything should worry people.

Similarly, sites are not using CDA 230 "as a shield," but to make it clear that the focus should be on actual traffickers rather than on the tools they use.

Traffickers use cars as well. Will Portman's next bill be holding Ford and GM responsible for any trafficking that uses cars?

The Communications Decency Act should not protect sex traffickers who prey on the most innocent and vulnerable among us.

IT DOES NOT. It never has. Nothing in CDA 230 protects traffickers. Traffickers are violating the law and law enforcement has every right to go after them. Hell, the three examples that Portman presented above all involve traffickers arrested by law enforcement. That seems to contradict his own point.

I do not believe those in Congress who supported this bill in 1996 ever thought that 21 years later, their vote would allow websites to knowingly traffic women and children over the internet with immunity.

Again, if it the sites themselves are involved in the trafficking, then CDA 230 already doesn't cover them.

However, courts and attorneys generals have made it clear that their hands are tied. In the most recent example, in August, a Sacramento judge threw out pimping charges against Backpage because of the liability protections afforded by this 1996 law, and he invited Congress to fix this injustice.

No. Their hands are tied in prosecuting Backpage without evidence of Backpage itself breaking the law. That's different. It doesn't tie their hands in prosecuting actual traffickers. And it doesn't stop them from prosecuting Backpage for evidence of actual crimes. Notice how Portman conveniently leaves out that while the judge in Sacramento threw out the pimping charges (because Backpage isn't doing the pimping) it let the case move forward on money laundering claims. In other words, Backpage is still in court, despite Portman implying that the entire case was dismissed.

This injustice is why I, along with more than two dozen of my colleagues from both sides of the aisle, introduced the Stop Enabling Sex Traffickers Act.

The bill would do two things. First, it would allow sex trafficking victims to get the justice they deserve by removing the law’s unintended liability protections for websites that knowingly facilitate online sex trafficking. Second, it would allow state and local law enforcement to prosecute websites that violate federal sex trafficking laws.

Portman is misleading in his description of his own bill. It does not only apply to those who "knowingly facilitate online sex trafficking." The "knowledge" standard in the bill is extraordinarily broad, covering "knowing actions" that are then used to facilitate sex trafficking. The distinction may be subtle, but it's huge. It means that a platform just needs to know about what its service can do, not the outcome. Wikipedia "knows" that people can add links to its online encyclopedia. It doesn't "know" when someone advertises sex trafficking via such a link. But under the current standard in the bill, that doesn't matter. The language about knowledge of how a service works, rather than the illegal activities, is a real problem with this bill.

The bill will achieve these ends without threatening the years of progress we have made in creating a free and open internet.

He says this despite the fact that nearly every internet company and expert says he's wrong. And plenty of sex trafficking experts as well. Just this week, a sex trafficking expert who helped write the State Department's own report on sex trafficking has said that this would create huge harms for the internet and for victims of sex trafficking.

The standard for liability in our bill is a high bar to meet.

This is simply incorrect. Multiple tech and legal experts have explained this over and over again. Simply saying there's a high bar does not make it true. The plain language of the bill shows that the bar is extraordinarily low.

Some in the tech community incorrectly claim that this bill will expose innocent websites to frivolous lawsuits. But my Senate colleagues and I carefully crafted this legislation to remove immunity only for websites that can be proven to have intentionally facilitated online sex trafficking.

Again, he can repeat this false claim as much as he wants, and it still doesn't make it true. The language in the bill is clear. If he wants it to only target those who have "intentionally facilitated online sex trafficking" he needs to change the language. Daphne Keller, at Stanford, just released a paper this week on ways to fix SESTA, and someone should send a copy to Portman.

There are already exemptions in the Communications Decency Act’s liability protections for intellectual property violations that exist without undermining the fundamental intentions of the law. It is unreasonable to suggest the result of a narrowly tailored exemption against knowing sex traffickers would be any different.

This is the most frustrating line in the entire piece. If Portman had the slightest bit of understanding about how the DMCA's notice-and-takedown provisions are routinely abused to censor the internet, there's no way he'd claim that it hasn't "undermined" anything. The fear here is that SESTA creates a kind of DMCA notice-and-takedown on steroids, because it adds possible criminal penalties. From the description here, it almost appears as if Portman doesn't even know that DMCA safe harbors exist for copyright, or that the lack of CDA 230 coverage for trademarks created a massive influx of court cases until eventually the courts effectively said that there was a DMCA-like safe harbor over trademarks as well.

In short, Portman seems to be either making an argument out of pure ignorance, or intentionally misrepresenting what's happening on the intellectual property side of the fence.

We have a moral responsibility to protect the most vulnerable among us and combat this injustice. Every day we wait is too late for countless vulnerable women and children.

And yet, absolutely nothing in SESTA actually protects those victims. They will still be trafficked. The bill only targets internet companies providing platforms that traffickers use. They will keep using the internet to traffic, even if badly targeted lawsuits take those companies down. Indeed, it's likely that they'll move to platforms that make it more difficult for law enforcement to figure out what's going on. SESTA will make the problem worse, not better, and will create tremendous collateral damage in the meantime.

Filed Under: cda 230, intermediary liability, rob portman, sesta, sex trafficking
Companies: backpage

Forcing Internet Platforms To Police Content Will Never Work

from the it's-never-enough dept

For many years now, we've pointed out that whenever people -- generally legacy content companies and politicians -- started pushing for internet platforms like Google, Facebook and Twitter to "police" content, that no matter what those platforms did, it was never going to be enough. For example, after years of resisting, Google finally caved to the demands of the MPAA and the RIAA and started using DMCA notices as a signal for its ranking mechanism. This was the first time that Google ever allowed outside actors to directly have some level of control in how Google ranked them in organic search. And in doing so, we feared two things would happen: (1) it would just encourage others to start demanding similar powers over Google and (2) even those to whom Google caved would complain that the company wasn't doing enough. Indeed, that's exactly what happened.

With that in mind, it was great to see UK lawyer Graham Smith (of the excellent Cyberleagle blog, where he regularly opines on issues related to attempts to regulate internet platforms) recently come up with a simple set of rules for how this works, which he dubbed the Three Laws of Internet Intermediaries (might need some marketing polish on the name...).

Note: the first and the last ones are basically identical to the concerns I raised (though stated more succinctly). But the middle one may be the most interesting one here and worth exploring. Every time we've seen internet platforms agree to start "policing" or "moderating" or "filtering" content it fails. Often miserably. Sometimes hilariously. And people wonder "how the hell could this happen." How could YouTube -- pressured to stop terrorist content from appearing, take down evidence of war crimes instead? How could Facebook -- pressured to stop harassment and abuse -- leave that content up, but silence those reporting harassment and abuse?

We've argued, many times, that much of the problem is an issue of scale. Most people have no idea just how many of these kinds of decisions platforms are forced to make in a never-ending stream of demands to "do something." And even when they hire lots of people, actually sorting through this stuff to understand the context takes time, knowledge, empathy and perspective. It's impossible to do that with any amount of speed -- and it's basically impossible to find enough people who want to dig through such context, with the skills necessary to make the right decisions most of the time. And, of course, that assumes that there even is a "right decision" -- when, more often than not, there's a very fuzzy gray area.

And, thus, the end result is that these platforms get pressured into "doing something" -- which is never enough. And then more and more people come out of the woodwork, demanding that more be done (or similar things be done on their behalf). And then the platforms make mistakes. Many, many mistakes. Mistakes that look absolutely ridiculous when put into context -- without recognizing those who made the decisions were unlikely to know the context, nor have any realistic way of gaining that context. And that leads to that second law that Graham points out: not only is it never enough, and not only do more and more people demand things be done for them, but on top of all that, people will get mad about the total lack of "accountability" and "transparency" in how these decisions are made.

Now, I'd agree that many platforms could be much more transparent about how these decisions are made, but then that creates another corollary to these rules: which is that the more transparent and accountable you are, (1) the more people game the system and make things worse and (2) the angrier people are that "bad stuff" hasn't disappeared.

At a time when the clamor for mandatory content moderation on the internet seems to be reaching a fever pitch, we should be careful what we wish for. It won't work well and the end results may make just about everything worse.

Filed Under: cda 230, graham smith, intermediary liability, section 230

Is Hollywood 'Exploiting' Anti-Trafficking Organization To Support SESTA?

from the not-a-good-look-guys dept

We've been a bit perplexed about how much momentum SESTA has. As explained, it's a bill that is called the "Stop Enabling Sex Traffickers Act" but it has many serious problems that could impact just about any online service, even if they have no idea that they're being used to support sex trafficking. Also, there's some aspect of moral panic to all of this, as the actual statistics suggest that the size of the sex trafficking problem is not nearly as big as many politicians and organizations claim. That's not to say it's not a problem -- because clearly it is a problem, and an important one. But it does suggest that broad-brush solutions with massive consequences to the entire internet should be reviewed a bit more carefully.

Indeed, as we've suggested, the way SESTA is currently structured, there appears to be a high likelihood that it would make the sex trafficking problem worse, by making it prohibitively risky for internet platforms to seek out and report to the authorities evidence of trafficking on their platforms. This is why a whole bunch of experts and organizations focused on stopping sex trafficking have all spoken out against SESTA, saying it's the wrong solution. Freedom Network USA, which works to reduce trafficking around the US made this point clearly:

It is important to note that responsible website administration can make trafficking more visible—which can lead to increased identification. There are many cases of victims being identified online—and little doubt that without this platform, they would have not been identified. Internet sites provide a digital footprint that law enforcement can use to investigate trafficking into the sex trade, and to locate trafficking victims. When websites are shut down, the sex trade is pushed underground and sex trafficking victims are forced into even more dangerous circumstances.

Similarly, the Sex Workers Outreach Project (SWOP) has spoke out against SESTA, calling it a "disguised internet censorship" bill.

The Stop Enabling Sex Trafficking Act or SESTA, S. 1963, however cleverly titled, is not at all what it claims to be. It boasts of being the answer to uncovering and punishing those engaged in sex trafficking online but what it actually is about is internet censorship. It is an attempt to remove the protection websites are currently offered under Section 230 of The Communications Decency Act. Section 230 is in place to uphold freedom of expression on the internet and protects websites from being liable for what a third party might post outside of their knowledge. If this bill passes, any person or business online could be subject to civil or state penalties if the authorities “believe” there is any trafficking or condoning of trafficking on your site. How is that determined? What activities will they consider illegal online? What about consenting adults engaging in sexual online courtship? What about our favorite fetish and cruising sites? What about individuals who enjoy posting nude or nude implied photos of themselves online? Would we then have to be worried about our naked photos being considered illegal solicitation?

But what about the groups supporting the bill? Well, we already looked at one group, that saw SESTA as a stepping stone to banning all porn. But I also wanted to look a little more closely at the National Center for Missing and Exploited Children -- NCMEC. NCMEC has a very good reputation, and the organization has done a lot of really amazing work. While it's a private non-profit, it was created by Congress and gets a ton of government funding. NCMEC has, at times, succumbed to moral panics and exaggerated threats around "stranger danger" and such -- but for the most part, it's a pretty respectable organization.

I was a bit surprised, then, to see its General Counsel, Yiota Souras, as one of the people testifying before Congress about SESTA recently, insisting that the bill is narrowly tailored (it's not) and that it was unlikely to negatively impact most companies online (it would).

But, then another story caught my eye. Recently, the powerhouse DC lobbying firm, American Continental Group, announced that it had signed up a bunch of new clients, including News Corporation, the owner of 20th Century Fox.

American Continental Group has signed another five clients: Cognizant Technology Solutions, Diebold Nixdorf, News Corporation, the Onex Corporation and Textron. The firm has signed more than 30 new clients this year, helped by the reputation of David Urban, a lobbyist there who’s seen as close to Trump’s administration after serving as a senior adviser on Trump’s campaign and helping him win Pennsylvania. (Urban’s name was mentioned as a potential replacement for Reince Priebus as White House chief of staff earlier this year.)

Manus Cooney, Chris Israel and Urban will lobby for News Corporation on intellectual property issues, according to the filing.

The name Manus Cooney stood out to me, because it turns out... he's Chairman of the Board of NCMEC:

And, first of all, good for him. It's good to see that he's on the board of non-profits and helping make the world a better place. But, it at least makes me wonder if there isn't something of a conflict here -- and perhaps one that explains NCMEC's over-enthusiastic support of such a bad bill. Yes, Cooney just took on News Corp as a client, but the firm also basically lists every other big Hollywood/legacy copyright player as a client. Viacom, Time Warner, the Authors Guild, Comcast (owners of NBC Universal), the Copyright Alliance, the Music First Coalition (an RIAA front group), Random House, Reed Elsevier, SoundExchange (an RIAA spinoff), Songwriters Guild of America, and others.

And it's no secret that many of those organizations are supporters of SESTA, some more vocally than others. News Corp's 21st Century Fox has directly come out in support, for example.

Hollywood really wants SESTA to pass for a variety of reasons, nearly all of them focused on its weird visceral hatred of one company: Google. You'll recall, of course, how the Sony Pictures hack a few years back revealed the existence of Project Goliath -- in which the various Hollywood studios colluded to try to support doing anything to harm Google. The key part of the Project Goliath strategy was to convinced state Attorneys' General to target Google for basically anything bad found on the internet. Its first "success" story was getting Mississippi Attorney General Jim Hood to subpoena Google and claim it was responsible for all the bad stuff people found on Google -- including counterfeit pharmaceuticals, sex trafficking and, of course, copyright infringement.

It was, of course, later revealed that the letter that Hood sent to Google had actually been authored by the MPAA's outside lawyers. Google pushed back against all of this, and a judge told Hood that nearly all of his attack was barred by CDA 230 (it also noted that the subpoena appeared to have been done in "bad faith.")

Now, let's pull all of this together: a big part of Hollywood's plan to handicap Google was to allow state Attorneys General to attack Google for bad stuff that people could find via Google. That flopped, in large part because of CDA 230, which protects sites from the actions of third parties. Now, along comes SESTA, whose entire point is to punch a giant hole in CDA 230, such that if a site is used to "facilitate" trafficking, the site suddenly loses its immunity. Another key point in SESTA: saying that claims brought by states Attorneys General are no longer immune from action under CDA 230. Hmmmmmm...

And, then, suddenly we have NCMEC step up to make clearly misleading to downright false statements in support of SESTA at the very same time that NCMEC's chairman of the board is pushing to get a lobbying deal with News Corp. -- one of the leaders of the anti-Google effort, and it raises at least some questions about whether NCMEC's support of SESTA is really about saving children... or helping Hollywood attack the internet.

Filed Under: cda 230, intermediary liability, jim hood, lobbying, manus cooney, sesta, yiota souras
Companies: american continental group, google, ncmec, news corp.

UK Gov't Considering Redefining Social Media Services As Publishers To Make It Easier To Control Them

from the failing-upward dept

Like seemingly every other government on the planet, the UK government wants internet companies like Google and Facebook to do more. Everyone has an axe to grind, whether it's not enough censorship, or the wrong kind of censorship, or the innate desire to hold companies accountable for the actions of their users. The voluntary moderation efforts made by these platforms always fall short of politicians' ideals. These legislators believe -- without evidence -- that perfectly moderated services are just a couple of button pushes away.

Because the things governments complain about are actually the words and deeds of users -- rather than the companies themselves -- pushes for "more" have limited effect. This doesn't make governments happy. This is a "problem" that needs "solving," apparently. And officials in the UK think they have an answer. They'll just arbitrarily redefine services until they're more easily pushed around.

Karen Bradley, the culture secretary, has said the government is considering changing the legal status of Google, Facebook and other internet companies amid growing concerns about copyright infringement and the spread of extremist material online.

The internet groups are considered conduits of information rather than publishers under UK law, meaning they have limited responsibility for what appears on their sites.

However, the chairman of the media regulator Ofcom said on Tuesday she believed the likes of Google and Facebook were publishers, raising the prospect that they could eventually face more regulation.

Before we delve into the bullshit that is redefining tech companies for easier regulation, let's take a look at the activities the UK government is treating as equals: terrorism and copyright infringement. Tell me that's not screwed up. I understand the government can be concerned about multiple online issues simultaneously, but while it may be conceivable the use of social media platforms by terrorists necessitates closer government scrutiny, mentioning infringement in the same breath cheapens the entire argument. It immediately makes it clear the endgame isn't curbing murderous acts that kill and injure dozens of people, but regulation of any sort of internet activity the government finds bothersome.

This is the slippery slope, delivered by a government official in a single sentence. Terrorism concerns make it easy to diminish freedoms and expand governmental control of communication services. Once it's set in motion, it remains in motion, moving from great evils like terrorism to comparatively minor quibbles like file sharing -- an activity that has yet to kill anyone. One is an existential threat. The other threatens nothing more than incumbents and their business models. Bradley's comment strongly suggests her ear's been bent nearly to the point of removal by entertainment lobbyists.

Moving beyond that, there's the problem with redefinition. You can't call a cat a dog just because more people register dogs than cats and you want to see that revenue stream increased. You can't call third parties publishers just because it makes it easier to hold them accountable for the actions of their users. If you head down this path, you invite every special interest group with a complaint about the internet to treat service providers as publishers. In short, you're asking to rain down litigation hell on tech companies with the end result being fewer services available for internet users.

If there's an upside, it's that the culture secretary views this definition shift as problematic.

I am looking into this. I am not sure the publisher definition in UK law would necessarily work in the way that people would like it to work. I think it would end up being very restrictive and make the internet not work in the way we want it to work.

But Bradley also wants the UK to be the "safest place to be online." It's hard to maintain a "free vibrant internet" while clamping down on everything the UK government considers to be dangerous. Website blocking by UK service providers already creates something far less free and vibrant than can be found elsewhere, and yet, it hasn't done much to make the UK much safer online, much less IRL.

Bradley may be hesitant to throw a different label on social media services, but the UK government as a whole hasn't exactly been shy about creating an AOL-esque Wee Britain online -- something that chills speech and deprives UK citizens of sources of information.

Filed Under: intermediary liability, internet, publishers, regulations, uk
Companies: facebook, google

Shouldn't Federal Judges Understand That Congress Did Not Pass SOPA?

from the hello-prior-restraint dept

We've discussed in the past the completely ridiculous attacks on Sci-Hub, a site that should be celebrated as an incredible repository of all the world's academic knowledge. It's an incredible and astounding achievement... and, instead of celebrating it, we have big publishers attacking it. Because copyright. And even though the purpose of copyright was supposedly to advance "learning" and Sci-Hub serves that purpose amazingly well, so many people have bought into the myth of copyrights must "exclude" usage, that we're in a time where one of the most amazing libraries in the world is being attacked. Sci-Hub lost its big case earlier this year, and almost immediately others piled on. Specifically, back in June, the American Chemical Society (ACS) jumped in with a similar "us too!" lawsuit, knowing full well that Sci-Hub would likely ignore it.

ACS has moved for a default judgment against Sci-Hub (what you tend to get when the defendant ignores the lawsuit), which it would likely get. However, in an extremely troubling move, the magistrate judge reviewing the case for the Article III judge who will make the final ruling has recommended forcing ISPs and search engines to block access to Sci-Hub. After recommending the standard (and expected) injunction against Sci-Hub, the recommendation then says:

In addition, the undersigned recommends that it be ordered that any person or entity in privity with Sci-Hub and with notice of the injunction, including any Internet search engines, web hosting and Internet service providers, domain name registrars, and domain name registries, cease facilitating access to any or all domain names and websites through which Sci-Hub engages in unlawful access to, use, reproduction, and distribution of ACS's trademarks or copyrighted works. Finally, the undersigned recommends that it be ordered that the domain name registries and/or registrars for Sci-Hub's domain names and websites, or their technical administrators, shall place the domain names on registryHold/serverHold or such other status to render the names/sites non-resolving.

So, this is kind of incredible. Because, as you might remember, there was a big fight a little over five years ago about a pair of bills in Congress called SOPA and PIPA that proposed allowing for such an order being issued to third parties like search engines, ISPs, domain registrars and the like, demanding they block all access to certain websites. And, following quite a public outcry (which also explained why this approach would do serious harm to certain security standards and other technical aspects of how the internet works), Congress backed down and decided it did not want to enable courts to issue such orders.

So why the hell is Magistrate Judge John F. Anderson recommending such an order?

At the very least, it seems problematic. Even if you ignore the Sci-Hub part of the equation (since it ignored the lawsuit, a default judgment was basically inevitable), you should be concerned about this. Here's a court order binding a very large number of non-parties to the lawsuit to completely block access to a variety of websites, without any sort of due process. One hopes that ISPs, domain registrars and search engines will push back on such an overbroad order -- one that even Congress realized was a step too far and never authorized.

Filed Under: copyright, dns, injunctions, intermediary liability, john f. anderson, search engines, site blocking, sopa
Companies: acs, sci-hub

Never Enough: EU Demands Social Media Companies Do The Impossible Even Faster

from the give-them-an-inch dept

The road to this story has been paved with absolutely dreadful decisions made in Europe over the past few years. As several courts and governments adopting the general idea that social media sites are somehow responsible for content posted by individual users, they likewise developed the stance that these sites must somehow review and remove "hate speech" — as vague and amorphous a term as there could possibly be. As such, the EU essentially demanded that sites like Twitter and Facebook act as content police for their platforms, with nary a care given to the insurmountable nature of the request, nor the actual moral viability of vicarious assignment of guilt. In what some describe as a no-choice situation, Google, Facebook and Twitter — among others — agreed to an equally vague notice and takedown regime for hate speech in the EU.

Choice or not, it was never going to work. Monitoring and responding to hate speech designations, while affording those accused of hate speech anything resembling a fair and honest review, is laughably beyond these companies' ability. Likewise, whatever those sites were actually able to accomplish in removing truly vile speech from their platforms was never going to be enough for the EU. Now that this door has been opened, rather than these sites standing firm and making the argument for why opening that door was ridiculous, we're too far down the road. It was therefore perfectly predictable that the EU was going to come back at these very same sites with more demands, in this case that these companies fulfill the EU's request for the impossible even faster.

Facebook, Twitter, Microsoft and Google have all pledged to do more. In May 2016, they promised to review a majority of hate speech flagged by users within 24 hours and to remove any illegal content. But the European Commission, EU's top regulator, said Thursday they are still failing to act fast enough. It said it would pass laws allowing the EU to impose punishments on companies that fail to act.

"The situation is not sustainable: in more than 28% of cases, it takes more than one week for online platforms to take down illegal content," said Mariya Gabriel, the EU's top official in charge of the digital economy and society.

Look, maybe I'm the weird one here, but I'm supremely impressed that these sites are able to respond to the vast majority of these takedown requests in under a week. Having only 28% of these requests be honored in a timespan of more than a week surpasses how effective I thought the sites would be at all of this. The question appears to be this: exactly how quickly does the EU want these sites to respond?

Because if a week or so, often less, isn't enough, what will be? You can bet that if these sites got it down to 3 days, the EU would demand it be done in 2. If 2, then 1. If 1? Well, then perhaps internet companies should become proficient in censoring speech the EU doesn't like before it ever appears. That's already being suggested, by the way.

The Commission said it will consider implementing new laws to tackle the problem if the online platforms fail to "take swift action over the coming months." It said it wants the companies to invest more in detecting of hate speech, and work with trusted reviewers who are trained to know what constitutes hate speech.

So much for these social media companies placating the EU. Once they opened that door, it should have been obvious the EU would come barging through it.

Filed Under: eu, eu commission, filtering, hate speech, intermediary liability
Companies: facebook, google, twitter

Backpage's Biggest Law Enforcement Critic Doesn't Think He Needs SESTA To Take Down Backpage

from the hello-sheriff-dart dept

One of Backpage's most vocal critics in law enforcement has been Cook County Sheriff, Thomas Dart. As you may recall, this has been a nearly decade-long obsession with Sheriff Dart, in which he has been slapped down many, many times by courts. In 2009 he sued Craigslist for hosting adult ads, only to get slapped down pretty hard by a court explaining to him that you can't blame an online service for how its users use it. Once the ads on Craigslist moved to Backpage, Dart had a new target, which he regularly complained about in the press. In 2015, knowing he couldn't sue Backpage directly, he instead (successfully) strongarmed all the payment companies that worked with Backpage into cutting off service.

In response, Backpage sued Dart and very quickly won. The district court quickly pointed out that this seemed like a pretty clear First Amendment violation, with a government official using the law to attack non-criminal actions, creating classic prior restraint. The appeals court agreed with a masterful ruling by Judge Posner, about how this appeared to be a clear abuse of power by Sheriff Dart to bankrupt a company he disliked, but over whom he held no jurisdiction.

The case was then sent back to the lower court on a few points, and the two sides have been flinging paper back and forth for a while -- mostly to no avail. There had been little to no action in the case for many months... until last week Sheriff Dart suddenly sprung up to ask the court to reopen the process so he can issue subpoenas to Backpage, to dig more into what he insists must be criminal activity.

He's basing this on media reports related to a separate investigation into Backpage, which at the very least do raise some questions about whether Backpage is truly involved in the creation of its ads (which would take away its CDA 230 protections). Dart claims this proves that Backpage was lying to the court about how much of a hand it had in crafting ads on its site.

This July, THE WASHINGTON POST and NBC NEWS each published explosive articles reporting that Backpage is actively recruiting prostitutes and even creating ads for them to post on its website. Copies of these articles are attached as Exhibits A and B, respectively. While “Backpage has always claimed it doesn’t control sex-related ads, [n]ew documents show otherwise.” Exhibit A. Backpage has been “aggressively soliciting and creating sex-related ads.”...

The articles explain that the discovery of incriminating documents showing Backpage’ s solicitation and ad creation came about accidentally following the seizure of computers from one of Backpage’s Philippine agents in an unrelated civil lawsuit, but the fact that the revelations were accidental does not take away from their explosive character. The seized documents, if authentic and the reporting about them correct, prove that the essential premise of the original and amended complaints—that Backpage does not provide any of the content of the ads soliciting prostitution—is not well grounded in fact. Backpage has been lying to this Court...

[....]

Defendant now seeks leave to obtain through subpoena the very documents discussed in the two news articles—documents which, if authentic, corroborate the Red Beauty Sting and prove that Backpage has encouraged and participated in illegal activities, including the creation of advertisements that would destroy its Communications Decency Act defense that it is merely a web platform posting the advertisements of others.

Indeed, if it comes out that Backpage was actively involved in the creation of the content, it does not get CDA 230 protections. Under the Roommates.com standard, you can lose 230 protections if you "develop" the comment -- which means "materially contributing to its alleged unlawfulness." I have no idea if Backpage actually goes that far, but if it does, then its 230 protections go out the window and it's in a lot of trouble.

But here's the important point: for all the hubbub over the supposed "need" to break CDA 230 with SESTA in order to go after Backpage for this activity, Sheriff Dart's motion shows that there's no reason for SESTA. If Backpage truly did what those media reports are claiming, then CDA 230 won't apply and Backpage is hosed.

This is something that gets completely lost in all of the talk about CDA 230, where people (falsely) think that it completely takes away any liability for criminal activity. It does not. It just makes sure that the liability is actually on the parties engaged in the criminal activity. If it's the end users, CDA 230 does nothing for them. And if it's the platforms themselves, then CDA 230 also doesn't protect them from their own activities. The fact that Sheriff Dart is arguing that he can now go after Backpage again, and that the CDA 230 protections are gone, is a good reminder that we don't need SESTA to go after Backpage if it really violated the law.

Filed Under: cda 230, intermediary liability, section 230, sesta, thomas dart
Companies: backpage

More Thoughts On The Senate's SESTA Hearing

from the what-is-the-plan-here dept

So far this week, we've explained why SESTA is such a bad bill and how it will create a massive chilling effect that could impact nearly every online service. And while the Senate hearing on the bill wasn't as bad as we feared it would be, it certainly had its problematic moments -- such as when the bill's co-author, Senator Richard Blumenthal, argued that companies that couldn't afford to moderate/filter everything should be prosecuted. However, in the days since the hearing, I've had a few thoughts about aspects of the debate that are, to say the very least, troubling.

"Do Something Now!": While it was good to see many Senators at least pay lip service to the idea that the bill needed changes to not have massive unintended consequences for the entire internet, it was troubling the way they approached this process. Prior to the hearing, Emma Llanso wrote up a list of four important questions Senators should ask during the hearing -- and none of them were asked. The key questions were fairly fundamental ones: what actual gap is there in the law and will this fix it? It was disturbing that no one seemed to discuss that at all.

After all, under CDA 230 today, nothing stops federal law enforcement from going after Backpage (other than if the DOJ doesn't think Backpage broke the law). CDA 230 does not cover federal government law enforcement. Similarly, CDA 230 does not cover content "developed" by a company itself. So, if as many people claim, Backpage develops illegal content itself, it's still liable. Finally, just a few years ago, Congress passed the SAVE Act, with the exact same stated intent: to carve a hole in CDA 230 to go after Backpage by making it a federal crime to advertise sex trafficking. That law hasn't been used -- and none of the Senators seem to be asking why.

Instead, there's very much the traditional politician's syllogism of "we must do something, this is something, we will do it." A few times during the hearing, Senators demanded from the two opponents to SESTA that they provide better language if they're concerned about this language. Notice the problem here: they were admitting that this language is problematic, but seemed to have no interest in understanding why or how to fix it -- instead, demanding that others give them new language, with the implicit threat that if they don't, this language will stay because this is "something."

That may be all too common, but it seems like a dreadful way to make policy.

The knowledge standard is a mess: This is important, and got some discussion during the hearing, but not nearly enough. The "knowledge" standard in the bill is a complete and total mess. The supporters of the bill brushed it off as no big deal, often by misstating what the bill actually says. California Attorney General Xavier Becerra focused solely on the criminal standards for knowledge, saying he needed to prove "beyond a reasonable doubt" that there was intent, while NCMEC's Yiota Souras insisted the knowledge standard was very narrowly tailored.

Both of them are wrong -- in somewhat staggering and dangerous ways. Again, the actual text of the bill says the following:

The term ‘participation in a venture’ means knowing conduct by an individual or entity, by any means, that assists, supports, or facilitates a violation [of sex trafficking laws.]

This is problematic on multiple levels. First "knowing conduct" by itself is vague and not clearly defined. As Professor Eric Goldman suggested during the hearing, knowing conduct could just mean that a platform knows it's doing something, but has no idea of the outcome. For example, if we knowingly allow users to post comments on our site -- and someone uses that to post sex trafficking ads -- even though we didn't know they were posting sex trafficking ads, our conduct in enabling comments was "knowing." If that sounds like a crazy scenario to you, fair enough -- but shouldn't the law state that much more clearly? Make it clear that the knowledge is not just of its own conduct, but that the conduct is specifically targeted at breaking the law.

The second problem with the knowledge standard is the claim that you can violate the law if your "knowing conduct" "by any means"... "assists, supports or facilitates a violation" of sex trafficking laws. As we explained earlier, assists, supports or facilitates is super broad. It's possible to read this to mean that hosting a website where someone sets up a blog to advertise sex trafficking makes you automatically liable -- even if you knew nothing of the actual content. After all, you did "knowing conduct" (hosting a website) and that website was used to "assist, support or facilitate" a violation of sex trafficking laws. We would not read the law this way, but as the language is currently written, it could very well be read that way.

And that means it will be read that way by someone. We've seen tons of civil lawsuits filed against deep-pocketed companies (and not so deep-pocketed companies) on a much more flimsy basis. If you don't think a bunch of lawyers won't be searching for such cases to bring, you haven't paid much attention.

And these lawsuits can be very costly and time-consuming. Remember the Viacom v. YouTube case? That was an intermediary liability case that was almost entirely focused on the question of whether YouTube had the requisite knowledge to be liable (sound familiar?). And it went on for more than seven years before it was finally settled, rather than having a court issue a final ruling. With such a weak knowledge standard (even weaker than the DMCA's that was fought over in the Viacom case), you can bet there will be long and costly lawsuits over just what the hell Congress meant by "knowledge."

It's fairly stunning and concerning that those pushing for the bill insist there's no problem with the knowledge language. It's as if they have no idea of the fairly recent litigation history over this very issue.

A lack of enforcement isn't fixed by blaming intermediaries: As mentioned, nothing in CDA 230 stops the Justice Department from going after intermediaries if they break the law. When this was (barely) brought up during the hearing, one response was that the DOJ is either overwhelmed or isn't doing its job -- and by opening up prosecutions to state law enforcement, it would allow more of these kinds of cases to be brought. And while that may be true, that seems like a really weird way to solve the problem. If the true problem is a lack of willingness or resources by the DOJ to take on these cases, then why isn't the discussion and legislation directly targeting that problem? Why isn't there a discussion of allocating more resources, or finding out why the DOJ isn't bringing these cases, and offering legislation or resources to solve whatever may be blocking action.

Instead, it seems like a very strange approach to say the answer to a lack of will or resource is... to make more companies liable.

A profound misunderstanding of CDA 230. This one bothers me quite a bit. If we're talking about amending CDA 230, at least get the facts on CDA 230 right. Unfortunately, many Senators and some of the witnesses did not. There's this incorrect belief that CDA 230 leaves no recourse for victims of sex trafficking. That is not even remotely true. The actual perpetrators of sex trafficking are still very much in violation of the law. And, again, if platforms actually develop illegal content themselves, then CDA 230 protections don't apply.

Finally, so many of the Senators and commentators act as though because of CDA 230, no company does anything to moderate their platforms. This is laughable. Basic public pressure has lead most platforms to moderate their platforms thoroughly -- and that's one of the features of CDA 230, in that it says that any effort to moderate/filter your platform to remove content you don't want to see (even if legal) does not attach any liability. SESTA changes that standard (even as its authors claim it doesn't). Because of the "knowledge" standard, moderating content may now be seen as evidence of "knowing conduct." So this effectively wipes out one of the most important tools that platforms have used to stop their platforms from being used for sex trafficking -- and no one seems to want to acknowledge that.

Unless the supporters of this bill are willing to face up to these basic facts and problems with the bill, their headlong rush into "doing something" seems likely to cause a lot more harm than good.

Filed Under: cda 230, intermediary liability, knowledge, sesta