Shockingly, NY Times Columnist Is Totally Clueless About The Internet

from the do-your-fucking-research,-kristof dept

It's fairly stunning just how often the NY Times Opinion pages are just... wrong. Nick Kristof, one of the most well known of the NYT's columnists, has spent years, talking about stopping sex trafficking -- but with a history of being fast and loose with facts, and showing either little regard for verifying what he's saying, or a poor understanding of the consequences of what he says. I would hope that everyone reading this supports stopping illegal and coerced sex trafficking. But doing so shouldn't allow making up facts and ignoring how certain superficial actions might make the problems worse. Kristof, in particular, has been targeting Backpage.com for at least five years -- but has been caught vastly exaggerating claims about the site to the point of potentially misstating facts entirely (such as claiming Backpage existed before it actually did, and that it operated in cities where it did not). Kristof also has a history of being laughably credulous when someone comes along with a good story about sex trafficking, even when it's mostly made up. He's been accused of having a bit of a savior complex.

And that's on display with his recent, extraordinarily confused piece attacking Google for not supporting SESTA -- the "Stop Enabling Sex Traffickers Act." As we've explained in great detail, SESTA (despite its name) is unlikely to stop any sex trafficking and likely would make the problem worse. That's because the whole point of SESTA is to undermine CDA 230, the part of the law that creates incentives for tech companies to work with authorities and to help them track down sex trafficking on their sites. What the bill would do is make websites owners now both civilly and criminally liable for knowledge of any sex trafficking activity on their sites -- meaning that any proactive efforts by them to monitor their websites may be seen as "knowledge," thus making them liable. The new incentives will be not to help out at all -- not to monitor and not to search.

Meanwhile, by putting such a massive target on websites, it will inevitably be abused. We see how people abuse the DMCA to take down content all the time -- now add in the possibility of sites getting hit with criminal penalties, and you can see how quickly this "tool" will be abused to silence content online.

But, never mind all of that. To Kristof, because the bill says it's against sex trafficking, and he's against sex trafficking, it must be good. And, he's quite sure that the only people against the bill are Google, and that there's ill-intent there.

Why? Why would Google ally itself with Backpage, which is involved in 73 percent of cases of suspected child sex trafficking in the U.S., which advertised a 13-year-old whose pimp had tattooed his name on her eyelids?

First of all, Kristof is, again, playing fast and loose with the facts if he thinks Google is an "ally" of Backpage. Google has directly come out and said that it believes that Backpage should be criminally prosecuted by the DOJ (remember, CDA 230 does not apply to federal criminal charges).

I want to make our position on this clear. Google believes that Backpage.com can and should be held accountable for its crimes. We strongly applaud the work of the Senate Permanent Subcommittee on Investigations in exposing Backpage's intentional promotion of child sex trafficking through ads. Based on those findings, Google believes that Backpage.com should be criminally prosecuted by the US Department of Justice for facilitating child sex trafficking, something they can do today without need to amend any laws. And years before the Senate's investigation and report, we prohibited Backpage from advertising on Google, and we have criticized Backpage publicly.

So, no, Google is not protecting Backpage. Kristof, towards the end of his post, waves off Google's strong words about Backpage as proof that it has no reason not to support this legislation, without even once grappling with (a) what Google actually says or (b) why Google (and tons of others) would still oppose this legislation as being tremendously damaging. Even if you're not quite as convinced as Google that Backpage has broken the law (the Senate Report appeared to take a number of Backpage actions completely out of context), to argue that Google is supporting Backpage is clearly just wrong. But, Kristof, having set up his thesis, is going to go for it, no matter how wrong:

The answer has to do with Section 230 of the Communications Decency Act, which protects internet companies like Google (and The New York Times) from lawsuits — and also protects Backpage. Google seems to have a vague, poorly grounded fear that closing the loophole would open the way to frivolous lawsuits and investigations and lead to a slippery slope that will damage its interests and the freedom of the internet.

"Poorly grounded fear?" That's just wrong. Kristof seems totally ignorant of issues related to intermediary liability on the internet -- an issue that has been studied for quite some time. When you give people tools to put liability on online services for the actions of their users, the tools are abused. Every time. They get abused for censorship. We know this. You don't have to look any further than the intermediary liability setup we have in the copyright realm, where every year we see millions of false DMCA notices filed just to censor content, and not for any reason having to do with copyright.

How do you think things will turn out when you're able to not just threaten a website with civil copyright penalties with limited damages, but with potential criminal penalties, through a vaguely worded law where mere "knowledge" can get your entire site in trouble? But again, Kristof doesn't care.

That impresses few people outside the tech community, for the Stop Enabling Sex Traffickers Act was crafted exceedingly narrowly to target only those intentionally engaged in trafficking children. Some tech companies, including Oracle, have endorsed the bill.

First, this is wrong. Lots of people outside the tech industry have raised concerns -- including free speech groups like the ACLU. But, even if it were only the tech community, why wouldn't you listen to the industry that actually has the experience in understanding how these kinds of laws are regularly abused to silence perfectly legitimate speech and to quash perfectly legitimate services? Wouldn't their input be valuable? Why does Kristof brush them off? As for the Oracle line -- let's be clear: Oracle and HP are the only "tech" companies that have come out in support of the bill, and neither run online services impacted by CDA 230. It's completely disingenuous to argue that Oracle represents "tech" when it's not an internet services provider who would be impacted by changes in CDA 230. Why even listen to them, rather than those who have the actual experience?

And the idea that this was "crafted exceedingly narrowly to only target those intentionally engaged in trafficking children" is just on its face, wrong. First off, the bill doesn't specifically just target trafficking having to do with children, but I think we can all agree that any trafficking is problematic. The issue is that it doesn't just punish those "intentionally engaged in trafficking." It specifically targets any website that is used in a way that "assists, supports or facilitates" trafficking and has broadly defined "knowledge" that the site is used that way. That's... not intentionally engaging in trafficking. It's much, much, much broader. Let's say you're Airbnb. SESTA makes it much riskier to be in business. If Airbnb hears that someone used Airbnb to traffic someone (which, unfortunately, is impossible to detect), now it risks criminal and civil lawsuits, because it "knew" of conduct that "assisted, supported, or facilitated." This is even if Airbnb doesn't know which accounts were used for this.

“This bill only impacts bad-actor websites,” notes Yiota Souras, general counsel at the National Center for Missing & Exploited Children. “You don’t inadvertently traffic a child.”

This is... just so misguided and wrong it's almost laughable. No, of course, no one "inadvertently" traffics a child. But that's not what this law is about. The law is about blaming websites if one of its users does anything related to trafficking someone via its services. And, that creates massive potential liability. Say someone wants to get our little site in trouble? They could just go and post links in comments to sex trafficking ads, and suddenly we're facing potential criminal charges. We're not Google. We can't hire staff to read every possible comment and recognize whether or not they're linking to illegal activity. And despite what some will say, even Google can't possibly hire enough staff, or get its AI good enough, to parse everything it touches to see whether or not it's linked to illegal activity. But under the current setup of SESTA, this leads you to a risk of massive liability.

The concerns here are real -- and Kristof is either ignorant or being purposely blind to the arguments here.

Senator Rob Portman, an Ohio Republican and lead sponsor of the legislation, says that it would clearly never affect Google. “We’ve tried to work with them,” Portman told me

This is laughable. The bill would impact basically every site, including Google. After all, it was just a few years ago, that a Mississippi Attorney General went on an illegal fishing expedition against Google -- put together by the MPAA's lawyers -- demanding all sorts of information from Google. Based on what? Well, Jim Hood said that because he could use Google to find sex trafficking ads, Google was breaking the law. A court tossed this out, and the two sides eventually settled, but under SESTA, Hood would now be able to go after Google criminally if any search turned up trafficking. And how the hell is Google supposed to make sure that no one ever uses any of its properties for sex trafficking?

But, never mind the facts. Kristof insists there's no issue here because the bill's sponsor says there's no issue.

Senator Richard Blumenthal of Connecticut, the lead Democratic sponsor, adds that “it’s truly baffling and perplexing” that some in the tech world (Google above all) have dug in their heels. He says the sex trafficking bill gathered 28 co-sponsors within a week, making it a rare piece of bipartisan legislation that seems likely to become law.

It's truly baffling that those with actual experience and knowledge in how weakening intermediary liability laws creates all sorts of problems are now telling you there will be all sorts of problems? And, really, isn't this the same Senator Richard Blumenthal who, when he was Connecticut Attorney General, was famous for campaigning against CDA 230 and blaming tech for basically everything? He's not exactly a credible voice. But, Kristof has his story and he apparently seems willing to believe anyone who says anything, no matter how little is based on facts, if it supports his version of the story.

I write about this issue because I’m haunted by the kids I’ve met who were pretty much enslaved, right here in the U.S. in the 21st century. I’ve been writing about Backpage for more than five years, ever since I came across a terrified 13-year-old girl, Baby Face, who had been forced to work for a pimp in New York City.

And you've been repeatedly called out and corrected for factual errors in your writing on this issue. Because you're quick to believe things that later turn out to be wrong. And, yes, stories like ones you've come across are awful and we should be doing everything possible to stop such exploitation. But blaming internet companies doesn't help. You blame the actual criminals, the ones trafficking the children. But, Kristof is clear: he doesn't care about blaming those actually responsible. He wants to take down internet companies. Because reasons.

But it’s not enough to send a few pimps to prison; we should also go after online marketplaces like Backpage. That’s why Google’s myopia is so sad.

Why? Why should we blame internet companies because people use them for illegal activity? What's wrong with blaming the people who actually break the laws? CDA 230, as currently written, encourages platforms to cooperate with law enforcement and to take down content. SESTA would undermine that and stop companies from working with law enforcement, because any admission of "knowledge" can be used against them.

In response to my inquiries, Google issued a statement: “Backpage acted criminally to facilitate child sex trafficking, and we strongly urge the Department of Justice to prosecute them for their egregious crimes against children. … Google will continue to work alongside Congress, antitrafficking organizations and other technology companies to combat sex trafficking.”

Fine, but then why oppose legislation? Why use intermediaries to defend Backpage? To me, all this reflects the tech world’s moral blindness about what’s happening outside its bubble.

Why oppose it? Because the legislation is a nuclear bomb on how the internet works and a direct attack on free speech. It's not "moral blindness" at all. In fact, SESTA would be a moral disaster because it removes incentives for companies to help stop trafficking, out of fear of creating "knowledge" for which they'll face civil and criminal lawsuits. This has been explained to Kristof -- and, in fact, people told him this on Twitter after his article was published, and he insisted that no one other than Google seemed concerned with SESTA.

That's also not true. As we've seen with our own letter, dozens of tech companies are worried about it. And we've talked to many more who admitted to us that they, too, think this is an awful law, but they're afraid of grandstanding folks like Kristof publishing misleading screeds against them falsely saying that worrying about SESTA is the same as supporting sex trafficking.

Incredibly, when an actual human trafficking expert and researcher, Dr. Kim Mehlman-Orozco, decided to challenge Kristof and point out that his opinions aren't backed up by the actual research, Kristof dismissed her views and data as not being as valuable as the few anecdotes he has.

Even if Google were right that ending the immunity for Backpage might lead to an occasional frivolous lawsuit, life requires some balancing.

Uh, what? This is basically Kristof first admitting that he's wrong that it won't impact sites other than Backpage, and then saying "meh, no biggie." But that's... really fucked up. We're not talking about the "occasional frivolous lawsuit." From what we've seen with the DMCA, it seems likely that there would be a rash of dangerous lawsuits, and companies being forced out of business -- not to mention tons of frivolous threats that never get to the lawsuit stage, but lead to widespread censorship just out of the fear of possible liability. How can Kristof just shrug that off as "balance"?

For example, websites must try to remove copyrighted material if it’s posted on their sites. That’s a constraint on internet freedom that makes sense, and it hasn’t proved a slippery slope. If we’re willing to protect copyrights, shouldn’t we do as much to protect children sold for sex?

HOLY SHIT. And here we learn that Kristof is so completely out of his depth that it's not even funny. Seriously, someone educate Nick Kristof a little on how the DMCA has been abused to silence speech, to kill companies and to create huge problems for free speech online? And that's with much lower penalties than what we're talking about with SESTA.

I asked Nacole, a mom in Washington State whose daughter was trafficked on Backpage at the age of 15, what she would say to Google.

“Our children can’t be the cost of doing business,” she said. Google understands so much about business, but apparently not that.

Ah, always close with a "for the children!" argument after making a bunch of statements that are just devoid of facts. No one is fighting this for the support of "business." They're doing it because they understand how important intermediary liability protections are against undermining how the internet works and how free speech works online. Kristof has a long history of not caring about facts so long as he gets a good story about just how concerned he is about trafficking. We're all concerned about trafficking -- but passing a law that will make the problem worse just to appear like you're a hero is not the solution, Nick.

Filed Under: cda 230, intermediary liability, nick kristof, sesta

Why SESTA Is Such A Bad Bill

from the so-much-damage dept

We've been talking quite a bit about SESTA -- the Stop Enabling Sex Traffickers Act -- and why it's so problematic, but with hearings today, I wanted to dig in a bit more closely with the text to explain why it's so problematic. There are a large number of problems with the bill, so let's discuss them one by one.

Undermines the incentives to moderate content and to work with law enforcement:

This remains the biggest issue for me: the fact that the bill is clearly counterproductive to its own stated goals. When people talk about CDA 230, they often (mistakenly) only talk about CDA 230(c)(1) -- which is the part that says sites are immune from liability. This leads many people to (again, mistakenly) claim that the only thing CDA 230 is good for is absolving platforms from doing any moderation at all. But this actually ignores the equally important part of the same section: CDA 230(c)(2) which explicitly encourages platforms to moderate "objectionable" content, by noting that good faith efforts to moderate and police that content have no impact on your protection from liability in part (1).

In other words: as currently stated, CDA 230 says that you're encouraged to moderate your platform and takedown bad content, because there's no increase in legal liability if you do so. Indeed, it's difficult to find a single internet platform that does zero moderation. Most platforms do quite a bit of moderation, because otherwise their platforms would be overrun by spam. And, if they want people to actually use their platforms, nearly every site (even those like 4chan) tend to do significant moderation out of public pressure to keep certain content off. Yet, under SESTA you now face liability if you are shown to have any "knowledge" of violations of federal sex trafficking laws. But what do they mean by "knowledge"? It's not at all clear, as it just says "knowledge." Thus, now if a site, for example, discovers someone using its platform for trafficking and alerts authorities, that's evidence of "knowledge" and can be used against them both in criminal charges and in civil lawsuits.

In other words, somewhat incredibly, the incentive here is for platforms to stop looking for any illegal activity on their sites, out of fear of creating knowledge which would make them liable. How does that help? Indeed, platforms will be incentivized not to do any moderation at all, and that will create a mess on many sites.

The vague "knowledge" standard will be abused:

This is sort of a corollary to the first point. The problematic language in the bill is this:

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

But what do they mean by "knowing conduct"? Who the hell knows. We already know that this is going to get litigated probably for decades in court. We have some similar problems in the DMCA's safe harbors, where there have been legal battles going on many years over whether the standard is "general knowledge" v. "specific knowledge" and what is meant by "red flag knowledge." And in SESTA the language is less clear. When people have attempted to pin down SESTA's sponsors on what the standard is for knowledge, they've received wildly varying answers, which just means there is no standard, and we'll be talking about lawsuits for probably decades before it's established what is meant by "knowledge." For companies, again, the best way to deal with this is to not even bother doing any moderation of your platform whatsoever, so you can avoid any claim of knowledge. That doesn't help at all.

The even vaguer "facilitation" language will be massively abused:

In that same definition of "participation in a venture" what may be even more problematic than the vague "knowledge" standard, is the vaguer claim that an entity "by any means, that assists, supports or facilitates a violation..." of sex trafficking laws, meets the standard of "participation in a venture." All three of those terms have potential problems. Assisting sounds like it requires proactive action -- but how do you define it here. Is correcting typos "assisting"? Is having an automated system suggesting keywords "assisting"? Is autocompleting search "assisting"? Because lots of sites do things like that, and it doesn't give them any actual knowledge of legal violations. How about "supporting"? Again, perfectly benign activities can be seen as "supporting" criminal behavior without the platform being aware of it. Maybe certain features are used in a way that can be seen as supporting. We've pointed out that Airbnb could be a target under SESTA if someone uses an Airbnb for sex trafficking. Would the fact that Airbnb handles payment and reviews be seen as "supporting"?

But the broadest of all is the term "facilitating." That covers basically anything. That's flat out saying "blame the tool for how it's used." Almost any service online can be used to "facilitate" sex trafficking in the hands of sex traffickers. I already discussed Airbnb above, but what about if someone uses Dropbox to host sex trafficking flyers? Or what if a sex trafficker creates advertisements in Google Docs? Or what if a pimp creates a blog on Wordpress? What if they use Skype for phone calls? What if they use Stripe or Square for payments? All of those things can be facilitation under this law, and the companies would have no actual knowledge of what's going on, but would face not only criminal liability but the ability of victims to sue them rather than the actual traffickers.

This is the core problem: this bill targets the tools rather than the law breakers.

Punching a hole in CDA 230 will be abused:

This is one that seems to confuse people who don't spend much time looking at intermediary liability protections, how they work and how they'll be abused. It's completely normal for people in that situation to not recognize how widely intermediary liability is used to stifle perfectly legitimate speech and activity. However, we know damn well from looking at the DMCA, in particular, that when you set up a process by which there might be liability on a platform, it's regularly abused by people angry about content online to demand censorship. Indeed, we've seen people regularly admit that if they see content they dislike, even if there's no legitimate copyright claim, they'll "DMCA it" to get it taken down.

Here, the potential problems are much, much worse. Because at least within the DMCA context, you have relatively limited damages (compared to SESTA at least -- the monetary damages in the DMCA can add up quickly, but at least its only monetary and it's limited to a ceiling of $150,000 per work infringed). With SESTA, criminal penalties are much more stringent (obviously) which will create massive incentives for platforms to cave immediately, rather than face the risk of criminal prosecution. Similarly, the civil penalties show no upper bound under the law -- meaning the potential monetary penalty may be significantly higher.

The chilling effects of criminal charges:

Combine all of this and you create massive chilling effects for any online platforms -- big or small. I already explained earlier why the new incentives will not be to help law enforcement or to moderate content at all, for fear of creating "knowledge" but it's even worse than that. Because, for many platforms, the massive potential liability from SESTA will mean they don't create any kind of platform at all. A comment feature on a website would become a huge liability. Any service that might conceivably be used by anyone to "facilitate" sex trafficking creates the potential for serious criminal and civil liability, which should be of great concern. It would likely lead to many platforms not being created at all, just because of the potential liability. For ones that already exist, some may shutter, and others may greatly curtail what the platform allows.

State Attorneys General have a terrible track record on these issues:

In response to the previous point, some may point out (correctly!) that the existing federal law already exempts federal criminal charges -- meaning that the DOJ can go after platforms if it finds that they're actively participating in sex trafficking. But, for as much as we rag on the DOJ, they tend not to be in the business of going after platforms just for the headlines. State AGs, on the other hand, have a fairly long history of doing exactly that -- including directly at the behest of companies looking to strangle competitors.

Back in 2010 we wrote about a fairly stunning and eye-opening account by Topix CEO Chris Tolles about what happened when a group of State Attorneys General decided that Topix was behaving badly. Despite the fact they had no legal basis for doing so, they completely ran Topix through the ringer, because it got them good headlines. Here's just a snippet:

The call with these guys was actually pretty cordial. We walked them through how we ran feedback at Topix, that how in January 2010, we posted 3.6M comments, had our Artificial Intelligence systems remove 390k worth before they were ever even put up, and how we had over 28k feedback emails and 210k user flags, resulting in over 45k posts being removed from the system. When we went through the various issues with them, we ended up coming to what I thought was a set of offers to resolve the issues at hand. The folks on the phone indicated that these were good steps, and that they would circle back with their respective Attorneys’ General and get back to us.

No good deed goes unpunished

So, after opening the kimono and giving these guys a whole lot of info on how we ran things, how big we were and that we dedicated 20% of our staff on these issues, what was the response. (You could probably see this one coming.)

That’s right. Another press release. This time from 23 states’ Attorney’s General.

This pile-on took much of what we had told them, and turned it against us. We had mentioned that we required three separate people to flag something before we would take action (mainly to prevent individuals from easily spiking things that they didn’t like). That was called out as a particular sin to be cleansed from our site. They also asked us to drop the priority review program in its entirety, drop the time it takes us to review posts from 7 days to 3 and “immediately revamp our AI technology to block more violative posts” amongst other things.

And, remember, this was done when the AGs had no legal leverage against Topix. Imagine what they would do if they could hold the threat of criminal and civil penalties over the company?

Similarly, remember how leaked Sony emails revealed that the MPAA deliberately set up Mississippi Attorney General Jim Hood with the plan to attack Google (with the letter Hood sent actually being written by MPAA outside lawyers?). If you don't recall, Hood used claims that, because he was able to find illegal stuff via Google, it meant he could go on a total fishing expedition into how it handled much of its business.

In the Sony leak, it was revealed that the MPAA viewed a NY Times article about the value of lobbying state AGs as a sort of playbook to cultivate "anti-Google" Attorneys General, who it could then use to target and take down companies the MPAA didn't like (remember, this was what the MPAA referred to, unsubtly, as "Project Goliath").

Do we really want to empower that same group of AGs with the ability to drag down lots of other platforms with crazy fishing expeditions, just because some angry Hollywood (or other) companies say so?

Opening up civil lawsuits will be abused over and over again:

One of the big problems with SESTA is that it will open up internet companies to getting sued a lot. We already see a bunch of cases every year where people who are upset about certain content online, target lawsuits at those sites just out of anger. The lawsuits tend to get thrown out, thanks to CDA 230, but lawyers keep trying creative ideas to get around CDA 230, adding in all sorts of frivolous attempts. So, for example, after the decision in the Roommates case -- in which Roommates.com got dinged for activity not protected by CDA 230 (specifically its own actions that violated fair housing laws) -- lots of people cite the Roommates case as an example of why their own argument isn't killed off by CDA 230.

In other words, if you give private litigants a small loophole to get around CDA 230, they try to jump in and expand it to cover everything. So if SESTA becomes law, you can expect lots of these lawsuits where people will go to great lengths to argue just about any lawsuit is not protected by 230, because of supposed sex trafficking occuring via the site.

Small companies will be hurt most of all:

There's this weird talking point making the rounds, that the only one really resisting SESTA is Google. We've discussed a few times why this is wrong, but let's face it: of all the companies out there, Google is probably best positioned (along with Facebook) to weather any of this. Both Google and Facebook are used to massive moderation on their platforms. Both companies have built very expensive tools for moderating and filtering content, and both have built strong relationships with politicians and law enforcement. That's not true for just about everyone else. That means, SESTA would do the most damage to smaller companies and startups, who simply cannot invest the resources to deal with constant monitoring and/or threats from how people use their platform.

Given all of these reasons, it's immensely troubling that SESTA supporters keep running around insisting that the bill is narrowly tailored and won't really impact many sites at all. It suggests either a willful blindness to the actual way the internet works (and how people abuse these systems for censorship) or a fairly scary ignorance level, with little interest in getting educated.

Filed Under: cda 230, congress, grandstanding, intermediary liability, knowledge, moderation, sesta

The Senate Is Close To Undermining The Internet By Pretending To 'Protect' The Children

from the 230-matters dept

Protecting children from harm is a laudable goal. But, as we've noted for many years, grandstanding politicians have a fairly long history of doing a lot of really dangerous stuff by insisting it needs to be done "for the children." That doesn't mean that all "for the children" laws are bad, but they do deserve scrutiny, especially when they appear to be reactive to news events, and rushed out with little understanding or discussion. And that's a big part of our concern with SESTA -- the Stop Enabling Sex Traffickers Act -- a "for the children" bill. With a name like that, it's difficult to oppose, because we're all in favor of stopping sex trafficking. But if you actually look at the bill with any understanding of how the internet works, you quickly realize that it will be tremendously counterproductive and would likely do a lot more to harm trafficking victims by making it much more risky for internet services to moderate their own sites, and to cooperate with law enforcement in nabbing sex traffickers using their platforms.

There's a hearing tomorrow morning about SESTA, and the bill is quickly moving forward, with very few Senators expressing any real concern about the impact it might have on free speech or the internet -- despite the fact that a ton of tech companies and free speech advocates have spoken out about their concerns. Instead, over and over again, we're hearing false claims about how it's just Google that's concerned. Last month, we'd put up a page on our Copia site about the bill with a letter to Congress signed by a few dozen tech companies. Today we're offiically announcing a standalone site, 230Matters.com, that explains why CDA 230 is so important, highlighting the many different parties concerned with the bill, from the ACLU and EFF to tech companies to think tanks and more. The site also hosts the letter that we sent to Congress with our concerns about the bill, put together with the group Engine Advocacy and signed by over 40 companies including Kickstarter, Reddit, Tucows, NVCA, Github, Automattic, Cloudflare, Rackspace, Medium and more.

That's not "just Backpage" or "just Google". The letter was signed by internet companies big and small that know just how damaging SESTA will be -- not just to their ability to operate online, but to their own efforts to proactively moderate their own sites, or even to work with law enforcement to help stop trafficking online. In other words, this bill is a double whammy: (1) it will greatly harm innovation and free speech online and (2) do so in a way that is likely to make trafficking worse. Unfortunately, supporters of the bill are falsely claiming that being against this bill is the equivalent of supporting sex trafficking. That's dangerous and leaves no room for actual discussion about why the bill will be so counterproductive.

The letter is still open for more signatures -- so if you represent a company that is concerned about this bill, please consider signing on.

With Congress paying attention to SESTA this week, you can expect more posts from us exploring the problems with the bill and with the arguments in its favor. We already had one post earlier today debunking the attacks on EFF and CDT, and more are forthcoming...

Filed Under: 230 matters, cda 230, for the children, free speech, intermediary liability, section 230, sesta, trafficking

Russia Piracy Blocking: Four Thousand 'Pirate' Sites Blocked... Along With Forty Thousand Sites Worth Of Collateral Damage

from the super-effective dept

We've long talked about the problems that come along with government mandating ISPs to act as copyright police by blocking so-called "pirate" websites. The issues with these attempts are many, ranging from their muted impact on piracy to concerns over just how a website is deemed to be a "pirate" website to the inevitable collateral damage sustained by non-infringing sites. With the last of those, you can pretty much set your watch to the stories of innocent sites being caught up in this sort of censorship. Still, the breadth of this particular problem likely escapes many people.

To get a handle on the sort of scope we're talking about, we can take a look at Russia. In response to international accusations of the government being lax on matters of copyright infringement, Russia enacted legislation in 2013 that tasked ISPs and hosting providers with blocking pirate websites. It's been nearly half a decade, so let's check in and see what sort of impact that legislation has had.

More than four years on, Russia is still grappling with a huge piracy problem that refuses to go away. It has been blocking thousands of sites at a steady rate, including RuTracker, the country's largest torrent platform, but still the problem persists.

Now, a new report produced by Roskomsvoboda, the Center for the Protection of Digital Rights, and the Pirate Party of Russia, reveals a system that has not only failed to reach its stated aims but is also having a negative effect on the broader Internet.

According to that study, the numbers come out to roughly 4,000 sites blocked that are the actual sort of website the Russian government meant to target and 41,000 sites that are essentially purely collateral damage. The reason for this is that the nature of the legal proceedings in these sorts of cases is such that the actual site operators basically never show up in court. Instead, the ISPs and hosting providers do, and are then ordered to block these pirate sites by IP addresses, among other methods. These IP addresses can be shared, however, meaning that any third party sharing an IP address with the target of a block order from the courts are caught up and likewise censored.

Due to the legal requirement to block sites by both IP address and other means, third-party sites with shared IP addresses get caught up as collateral damage. The report states that more than 41,000 innocent sites have been blocked as the result of supposedly targeted court orders.

But with collateral damage mounting, the main issue as far as copyright holders are concerned is whether piracy is decreasing as a result. The report draws few conclusions on that front but notes that blocks are a blunt instrument. While they may succeed in stopping some people from accessing ‘pirate’ domains, the underlying infringement carries on regardless.

“Blocks create restrictions only for Internet users who are denied access to sites, but do not lead to the removal of illegal information or prevent intellectual property violations,” the researchers add.

So, the blunt instrument of censorship has been fairly bad at stopping copyright infringement, it's stated goal, but quite good at censoring innocent sites at a factor of ten to one compared with the actual targets of the censoring. That's the kind of failure that's so bad it's impressive. One would think the Russian government would be looking to overhaul the legislation and censorship program to start driving these numbers back into the realm of reason. But this is Russia we're talking about, so instead the country is ramping up its censorship efforts, with requirements for search results to omit "pirate" sites and by criminalizing VPNs.

It's enough that you start to wonder just how many websites the average Russian citizen will be able to access at all before long.

Filed Under: blocking, censorship, collateral damage, copyright, intermediary liability, isps, piracy, russia

Leaked Plans Shows Top EU Body Backing Copyright Industry Against The Public, The Internet, And Innovation

from the whatever-happened-to-Estonia's-deep-understanding-of-digital? dept

Techdirt has been covering the slow and painful attempts by the EU to make its copyright laws fit for the digital age for nearly four years now. Along the way, there have been some good ideas, and an astonishingly bad one that would require many online services to filter all uploads to their sites for potential copyright infringements. Despite the widespread condemnation of what is now Article 13 in the proposed Copyright Directive, an important new leak (pdf) published on the Statewatch site shows that EU politicians are still pushing to make the censorship filters mandatory.

The document is an attempt by Estonia, which currently holds the Presidency of the Council of the EU -- one of the three main European Union bodies -- to come up with a revised text for the new Copyright Directive. In theory, it should be a compromise document that takes into account the differing opinions and views expressed so far. In practice, it is a slap in the face for the EU public, whose concerns it ignores, while pandering to the demands of the EU copyright industry.

Estonia's problem is that the whole idea of forcing Web sites to filter uploads contradicts an existing EU directive, one from 2000 on e-commerce. This created a safe harbor for sites that were "mere conduits" or simply hosting material -- that is, took no active part in publishing material online. The Directive explicitly says:

Member States shall not impose a general obligation on providers, when providing the services covered by Articles 12, 13 and 14, to monitor the information which they transmit or store, nor a general obligation actively to seek facts or circumstances indicating illegal activity.

Most of the leaked document is a forlorn attempt to circumvent this unequivocal ban on upload filters:

In order to ensure that rightholders can exercise their rights, they should be able to prevent the availability of their content on such [online] services, in particular when the services give access to a significant amount of copyright protected content and thereby compete on the online content services' market. It is therefore necessary to provide that information society service providers that store and give access to a significant amount of works or other subject-matter uploaded by their users take appropriate and proportionate measures to ensure the protection of copyright protected content, such as implementing effective technologies.

It is reasonable to expect that this obligation also applies when information society service providers are eligible for the limited liability regime provided for in Article 14 of Directive 2000/31/EC [for hosting], due to their role in giving access to copyright protected content. The obligation of measures should apply to service providers established in the Union but also to service providers established in third countries, which offer their services to users in the Union.

In other words, even though Article 14 of the E-commerce Directive provides a safe harbor for companies hosting content uploaded by users, the EU wants to ignore that and make online services responsible anyway, and to require upload filtering, even though that is forbidden by Article 15. Moreover, this would apply to non-EU companies -- like Google and Facebook -- as well. The desperation of the Estonian Presidency is evident in the fact that it provides not one, but two versions of its proposal, with the second one piling on even more specious reasons why the E-commerce Directive should be ignored, even though it has successfully provided the foundation of Internet business activity in the EU for the last 17 years.

Jettisoning that key protection will make it far less likely that startups will choose the EU for their base. The requirement to filter every single upload for potential infringements will probably be impossible, and certainly prohibitively expensive, while the legal risks of not filtering will be too great. So the Estonian Presidency is essentially proposing the death of online innovation in the EU -- rather ironic for a country that prides itself for being in the digital vanguard.

The leaked document also contains two proposals for Article 11 of the Copyright Directive -- the infamous link tax. One takes all the previous bad ideas for this "ancillary copyright", and makes them even worse. For example, the new monopoly right would apply not just to text publications in any media -- including paper -- but also to photos and videos. In addition, it would make hyperlinks subject to this new publisher's "right". The only exceptions would be those links not involving what is termed a "communication to the public" -- a concept that is so vague that even the EU's top courts can't agree what it means. The other proposal completely jettisons the idea of any kind of link tax, and instead wants to introduce "a presumption for publishers of press publications":

in the absence of proof to the contrary, the publisher of a press publication shall be regarded as the person entitled to conclude licences and to seek application of the measures, procedures and remedies … concerning the digital use of the works and other subject-matter incorporated in such a press publication, provided that the name of the publisher appears on the publication.

This is something that has been suggested by others as providing the best solution to what publishers claim is a problem: the fact that they can't always sue sites for alleged copyright infringement of material they have published, because their standing is not clear. It effectively clarifies that existing copyright law can be used to tackle abusive re-posting of material. As such, it's a reasonable solution, unlike the link tax, which isn't.

The fact that two such diametrically-opposed ideas are offered in a document that is meant to be creating a clear and coherent way forward is an indication of what a mess the whole EU Copyright Directive project remains, even at this late stage. Unfortunately, the Estonian Presidency's unequivocally awful drafts for Article 13 suggest that the EU is still planning to bring in a law that will be bad for the Internet, bad for innovation, and bad for EU citizens.

Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+

Filed Under: copyright, copyright directive, estonia, eu, filtering, intermediary liability, link tax, monitoring

The Scale Of Moderating Facebook: It Turns Off 1 Million Accounts Every Single Day

from the not-an-easy-issue dept

For years now, we've discussed why it's problematic that people are demanding internet platforms moderate more and more speech. We should be quite wary of internet platforms taking on the role of the internet's police. First, they're really bad at it. As we noted in a recent post, platforms are horrendously bad at distinguishing abusive content from those documenting abusive content and that creates all sorts of unfortunate and bizarre results, with those targeted by harassing content often having their own accounts shut down. On top of that, the only way to actually moderate content at scale requires a set of rules, and any such set of rules, as applied, will create hysterically bad results. And that's because the scale of the problem is so massive. It's difficult for most people to comprehend even slightly the scale involved here. As a former Facebook employee who worked on this stuff once told me, "Facebook needs to make one million decisions each day -- one million today, one million tomorrow, one million the next day." The idea that they won't make errors (both of the Type 1 and Type 2 category) is laughable.

And it appears that the scale is only growing. Facebook has now admitted that it shuts off 1 million accounts every single day -- which means that earlier number I heard is way low. If it's killing one million accounts every day, that means it's making decisions on way more accounts than that. And, the company knows that it gets things wrong:

Still, the sheer number of interactions among its 2 billion global users means it can't catch all "threat actors," and it sometimes removes text posts and videos that it later finds didn't break Facebook rules, says Alex Stamos.

"When you're dealing with millions and millions of interactions, you can't create these rules and enforce them without (getting some) false positives," Stamos said during an onstage discussion at an event in San Francisco on Wednesday evening.

That should be obvious, but too many people think that the answer is to just put even more pressure on Facebook -- often through laws requiring it to moderate content, takedown content and kill accounts. And, when you do that, you actually make the false positive problem that much worse. Assuming, for the sake of argument, that Facebook has to kill 10% of all the accounts it reviews, that's 10 million accounts every day. If the punishment for taking down content that should have been left up is public shame/ridicule, that acts as at least some defense to get Facebook to be somewhat careful about not taking down stuff that it shouldn't. But, on the flip side, if you add a law (such as the new one in Germany) that puts criminal penalties on social media companies for leaving up content that it wants taken down, you've changed the equation.

Now, the choice isn't between "public ridicule vs. bad person on our platform" it's "public ridicule v. criminal charges and massive fines." So the incentive for Facebook, and other platforms changes such that it's now encouraged to kill a hell of a lot more accounts, just in case. So suddenly the number of "false positives" is going to sky rocket. That's not a very good solution -- especially if you want platforms to support free speech. Again, platforms have every right to moderate content on their platforms, but we should be greatly concerned when governments are forcing them to moderate in a way that may have widespread consequences on how people speak, and where those policies can tilt the scales in often dangerous ways.

Filed Under: alex stamos, choices, intermediary liability, moderation, scale
Companies: facebook

California Case Against Backpage Moves Forward Over Money Laundering Claims

from the why-do-we-need-to-change-cda-230? dept

Late last year, we wrote about ridiculous charges by California's then Attorney General, Kamala Harris, against Backpage.com for "pimping." As we pointed out at the time, Harris clearly knew the case was a loser. It completely exaggerated what Backpage had done, and Harris herself had earlier admitted that she had no authority to go after an internet platform for how people used it. A judge quickly threw out the charges against Backpage... and Harris turned around and filed even more charges against Backpage's execs, including repeating the pimping charge and adding in "money laundering."

As we noted at the time, the money laundering charges seemed pretty questionable. It's based on the fact that Backpage had set up a separate (and separately named operation) to handle billing. The complaint argues that this was a form of money laundering, to hide from credit card companies that the money was being spent on prostitution. That leaves out, of course, that part of the reason why Backpage likely had to set up such a structure was because Cook County Sheriff Thomas Dart had threatened credit card companies if they didn't stop working with Backpage -- a move that was later deemed to be a clear First Amendment violation against the company by Sheriff Dart.

In a new ruling in the case in California, the court has thrown out nearly all of the charges -- including the "pimping" charges that were already previously thrown out. But they are allowing the money laundering charge to go forward -- though it does appear the court recognizes that the state will have a hard time winning it's case.

This Court agrees the complaint is not a model of clarity. However, the nature of the charges and theories of prosecution are ascertainable from the amended charging instrument. Specifically, the People now allege that Defendants conspired to orchestrate a bank fraud by misrepresenting to credit payment processors that they were not processing transactions from Backpage, and this misrepresentation would trigger a release of funds from banks. The overt acts alleged clarify that Defendants created multiple classified websites, and when applying for (at least one) merchant account, Defendant Ferrer omitted any reference to Backpage, despite intending to process Backpage transactions through the account. The People allege that credit payment processors, along with American Express, would not have knowingly processed the payments for Backpage and the banks would not have released funds absent Defendants’ trickery.

These allegations provide sufficient notice for Defendants to understand the nature of the charges and prepare a defense. Essentially, either Defendants did - or did not - materially represent to credit payment processors in a scheme to fraudulently obtain money from banks. If Defendants did so, this may form the basis for a money laundering charge. (Cf. United States v. Mason (9th Cir. 1990) 902 F.2d 1434, 14431 [federal money laundering conviction supported by evidence that bank would not have opened a merchant account had it known it was laundering credit charges for prostitution; the false representation to the credit processor influenced the bank’s release of funds].) The factual resolution to that question, however, is not at issue here. What is at issue is whether the First Amended Complaint has been sufficiently pled to meet statutory and due process requirements.

The ruling goes on to note that California prosecutors "must show that the profits came solely from that underlying criminal activity" which may be difficult, given that it's repeatedly failed to show any underlying criminal activity done by Backpage itself (rather than Backpage's users -- many of whom may, in fact, be engaged in criminal behavior). The court also does toss out some of the money laundering charges: the ones based on the completely bogus "pimping" charges.

Of course, it's important to note that this case continues against the backdrop of Congress rushing headlong towards trying to amend CDA 230 to allow states, like California, to bring charges against companies like Backpage (and to allow individuals to sue in civil court as well).

As we've discussed, that bill, called "SESTA," will almost certainly do a lot more harm than good for the victims of sex trafficking. However, it is important to note that when the bill was introduced, it was clearly designed to target one company in particular: Backpage. Just read the quotes from various Senators co-sponsoring the bill, who make it clear that the bill is to take down Backpage:

Senator Portman: “Stopping trafficking is one of the great humanitarian and human rights causes of the 21st century. Our bipartisan investigation showed that Backpage knowingly facilitated sex trafficking on its website to increase its own profits, all at the expense of vulnerable women and young girls. For too long, courts around the country have ruled that Backpage can continue to facilitate illegal sex trafficking online with no repercussions. The Communications Decency Act is a well-intentioned law, but it was never intended to help protect sex traffickers who prey on the most innocent and vulnerable among us. This bipartisan, narrowly-crafted bill will help protect vulnerable women and young girls from these horrific crimes.”

Senator Blumenthal: “Our narrowly tailored legislation would give victims of sex trafficking their day in court. For too long, countless young people have been victims of prostitution, human trafficking, and horrendous violence through ads on websites like Backpage.com. This is not an abstract debate: these advertisements come with a real, unconscionable human cost.”

Senator McCain: “For years, Backpage.com has knowingly facilitated online sex trafficking and child exploitation, destroying the lives of innocent young women and girls,” said Senator McCain. “It is disgraceful that the law as written has protected Backpage from being held liable for enabling these horrific crimes. Our legislation would eliminate these legal protections and ensure companies like Backpage are brought to justice for violating the rights of the most innocent among us.”

Senator McCaskill: “Until our investigation showed Backpage was actively facilitating sex trafficking, the company had repeatedly used the federal law that protects online platforms to escape accountability for the disgusting crimes it aided. But even as we’ve helped deny Backpage its legal shield in these cases, we need a broader effort to stop the next Backpage, before it starts. And that’s what this bipartisan bill is all about—better protecting Missouri’s families from sex trafficking by making clear to any company considering going into business with sexual predators, that the law won’t protect them from responsibility.”

Senator Heitkamp: “For too long, websites like Backpage.com have profited from knowingly facilitating the sex trafficking of minors and others through the use of their online platform – in many instances, helping traffickers skirt law enforcement and their own standards to advertise minors for sex. And what’s worse: they’ve been able to continue doing this without penalty by claiming protection under the First Amendment. That’s a disgusting and cowardly invocation of one of our nation’s most cherished freedoms – neither the First Amendment nor the Communications Decency Act was written to shield those who help enslave and sell children for sex. It’s past time to hold websites that make money from sex trafficking accountable, just as our laws already do for traffickers, for the enslavement and abuse of men, women, and even children – who have been reportedly trafficked at a near 850 percent increase since 2010 largely because of the anonymity internet sales provide – and our bipartisan bill would work to do that by cracking down on these horrific crimes online.”

Senator Klobuchar: “Websites like Backpage.com facilitate sex trafficking across Minnesota and our country. But shutting down these sites isn’t enough, we need to stop protecting perpetrators and ensure victims are able to seek the justice they deserve. The bipartisan Stop Enabling Sex Traffickers Act is another step forward to putting an end to these crimes once and for all.”

Senator Lankford: “Heinous crimes like sex trafficking deserve to be met with the fullest extent of the law. We must eliminate loopholes to prevent any entity from avoiding the justice they deserve. This legislation is needed to help protect vulnerable people from modern-day slavery, which unfortunately has been facilitated more and more online. I’m proud to work with my colleagues on the PSI Subcommittee to not only investigate Backpage, but to address the urgent, moral issue of human trafficking.”

Senator Lee: “The Communications Decency Act was never meant to provide immunity to websites like Backpage.com. Today’s legislation will deter others from facilitating sex trafficking and allow victims the possibility of restitution, while preserving the core protections of Section 230.”

Senator Rubio: “Perpetrators of human trafficking and websites like Backpage.com that knowingly facilitate sex trafficking of children must be held accountable. Sex trafficking is an ongoing issue in Florida and across our nation, and this legislation is an important step forward in ensuring that those engaging in and helping to facilitate these crimes are held responsible and all victims receive the justice they deserve.”

And yet, as we pointed out, nothing in CDA prevents the DOJ from going after Backpage if it actually engaged in prostitution or sex trafficking. Indeed, it's been widely reported that the DOJ has been investigating Backpage. The fact that no charges have been brought by the DOJ is at least worth noting. It's possible that more investigation is needed, or it's possible that there actually isn't a violation that the DOJ could find.

But, either way, this latest ruling, allowing at least some of the money laundering charges to move forward raises the question of why we need to rush forward with this new bill, that will have massive and much wider consequences for the internet. Law professor Eric Goldman has a thoughtful analysis of this latest ruling, in which he suggests this shows that calling out Backpage by all those Senators has likely always been a smokescreen for attacking the underpinnings of the internet:

This ruling has potentially important consequences for the pending bills to amend Section 230. Much of the rhetoric about the bills has specifically targeted and called out Backpage–and only Backpage. A key assumption for the bills is that Backpage needs to be crushed and existing law isn’t getting the job done because of Section 230. As this ruling shows, existing law may in fact be sufficient to crush Backpage irrespective of Section 230. As a result, there is no need–and certainly no urgency–to rush through amendments to Section 230, with potentially major consequences for the entire Internet, while courts are still resolving the matter. (Indeed, that would be true even without this ruling because of the pending grand jury investigation into Backpage in Phoenix that may use the SAVE Act, the anti-Backpage law Congress just enacted in 2015).

However, it’s possible that, despite the anti-Backpage rhetoric, the advocates supporting the pending bills aren’t really targeting just Backpage but have larger objectives to undermine or eviscerate Section 230. I expect this ruling will expose the advocates’ true agendas. Because a state prosecution of Backpage is making progress without any changes to Section 230, those advocates should be willing to acknowledge that amendments to Section 230 aren’t essential to achieve their anti-Backpage goal. More likely, I expect the bill supporters to shift the rhetoric about the need for the bills to deemphasize Backpage as the target. If so, this would highlight that Backpage was only a surrogate target–and other Internet entities are also in the bills’ target sights. Once that rhetorical shift occurs, I think we deserve clear answers about who else the proponents expect will be affected by the bills–and how.

Again, SESTA is a huge threat to the way the internet works today -- and in a way that will actually do great harm to actual victims of sex trafficking. It's really depressing that those whose true aims are to undermine the internet are so coldly hiding behind false claims of protecting victims of sex trafficking just to attacking the internet.

Filed Under: california, cda 230, intermediary liability, kamala harris, money laundering, section 230, sesta
Companies: backpage, backpage.com

Sex Trafficking Expert: CDA 230 Helps Victims And SESTA Would Harm Trafficking Victims

from the don't-believe-the-hype dept

Over the last few weeks, we've been talking about SESTA -- the Stop Enabling Sex Traffickers Act. Part of our argument is that the bill will be completely counterproductive to its own goals. As we explained in a letter to Congress (signed by a bunch of tech companies), after two decades of watching CDA 230 in practice, it's clear that SESTA will do the exact opposite of what supporters claim it will do. But that's from the point of view of internet companies who know how the law intersects with technology.

But what about experts in trafficking. In our letter, we admitted that area is not our expertise, but that we're all supportive of the idea of stopping trafficking. However, someone who is an expert in trafficking is Alexandra Levy, a law professor at Notre Dame, who works at the Human Trafficking Pro Bono Legal Center and teaches a class entirely about human trafficking. She's written up a fascinating blog post for professor Eric Goldman's blog where she explains why SESTA will be a total disaster for human trafficking.

More than two decades later, Section 230 allows people to do more than just set the terms of acceptable speech. It also empowers countless users — including the FBI, victim advocates, concerned citizens, family members, and nonprofit organizations, among others — to proactively fight atrocities such as human trafficking. By removing liability from internet intermediaries (such as Backpage), Section 230 enables intermediaries to serve as a natural pathway between victims and those who want to help them.

Due to its wide accessibility, Backpage has enabled people to find and recover family members (including with the help of journalists); nonprofits point to it as a resource for identifying and reaching out to victims; and scores of criminal indictments reveal its value as a point of connection between police and victims. Statistics also show how Section 230 may assist the fight against human trafficking: the National Center for Missing and Exploited Children (NCMEC), among others, reports that the majority of child sex trafficking reported to them involve Backpage.

None of this should be surprising: after all, it stands to reason that victims whose services are advertised in more visible places, like Backpage, are more visible to everyone — and thus easier to recover. In this way, Backpage sets a trap for traffickers: lured by the prospect of reaching a large, centralized repository of customers, traffickers end up revealing themselves to law enforcement and victim advocates. There’s nothing to suggest that Backpage causes them to be victimized, but plenty of reason to believe that, without it, they would be much harder to find. Section 230 allows Backpage to serve as a lifeline between trafficking victims and those who want to usher them to safety.

As Levy goes on to explain, while so many seem quick to blame Backpage for trafficking, they're confusing Backpage being used to rescue victims and track down traffickers as somehow being responsible for the trafficking happening in the first place. She notes, as we suggested, that Section 230 makes it possible for sites to shine a light on trafficking, to alert authorities, and to play a strong role in preventing or stopping trafficking. Taking that away will kill that. Hiding trafficking doesn't stop the trafficking. In fact, it can make things worse.

But while Backpage isn’t allowed to traffic people, Section 230 currently prevents it from getting in trouble for shining a light on human trafficking. That’s the crucial distinction at the heart of Section 230, and it’s the provision that proves most infuriating to those who insist that causing victims to disappear from Backpage is going to somehow return them to safety. Because of Section 230, people who try to sue Backpage for simply revealing trafficking have been unsuccessful (if they could show that Backpage had engaged in trafficking, their suits would not be dismissed).

In order to get trafficking victims to stop appearing on Backpage, these advocates call for legislation to limit its Section 230 protection. Their most recent move is the “Stop Enabling Sex Traffickers Act of 2017” (“SESTA”), introduced in the Senate in early August. Among other things, SESTA would allow people to directly sue Backpage (and other intermediaries) for damages for human trafficking — even if Backpage didn’t do anything more than shine a light.

This is part of what's so infuriating about the rush to pass SESTA. It's one of those bills that makes claims that nearly everyone supports. Sex trafficking is bad and of course we should support efforts to stop it. But, this bill wouldn't do that -- and, in fact, would almost certainly make the problem worse. Tech companies who have dealt with CDA 230 know that already, and it's good to see some sex trafficking experts come to the same conclusion.

Filed Under: alex levy, cda 230, intermediary liability, section 230, sesta, sex trafficking
Companies: backpage

Lawyer: Yahoo Lost Sec. 230 Immunity Because It Didn't Hand Over Personal Info; Court: GTFO

from the please-allow-me-to-entertain-you-with-my-legal-theories dept

Sometimes litigants start out with a good case... or at least a credible one. Then they ruin it by getting creative. The day-to-day work of adjudicating may be a bit dry, but novel legal arguments rarely provide anything more than entertainment for bystanders.

Lawyer and author Thomas Hall originally sued three individuals for alleged online harassment. According to his first complaint, Hall had drawn the ire of supposed white supremacists who bombarded him with hundreds of "threatening and disparaging emails." Hall sought a restraining order against the three defendants, but apparently needed a bit more personal info before he could get that order approved. [via Eric Goldman]

That's when he got creative. Having received no help from Yahoo in identifying the people behind the alleged harassment campaign, Hall decided to sue Yahoo as well. That's when the case went from credible to WTF. From the decision [PDF]:

On August 29 2014, Hall filed the instant action against Lund, Jessop, and Dunk for intentional infliction of emotional distress, libel, false light invasion of privacy, and invasion of privacy. In addition to those named or identified in the previous harassment action, Hall named as a defendant derHoaxster@gmail.com (derHoaxster), and alleged that derHoaxster had “published multiple statements disparaging Plaintiff as dishonest in his law practice and in his personal life.” Hall also named Yahoo as a defendant, based on allegations that Yahoo had published or republished threatening and defamatory statements made by Lund, Jessop, Dunk, and derHoaxster.

Yahoo, naturally, claimed it had done no such thing. It also pointed out postings by third parties were the third parties' problem, not Yahoo's. Hall, however, argued Yahoo could be proven to be responsible for the supposed republished content. The court humored him. Hall did not fail to disappoint.

On July 17, 2015, Hall filed a first amended complaint (FAC) that included the same causes of action alleged in his initial complaint as well as a new fifth cause of action against Yahoo for intentional interference with contract. In the new cause of action, Hall alleged that Yahoo had flooded his America Online (AOL) email account with more than 2000 emails denigrating AOL’s services. Hall’s FAC also alleged that Yahoo was not shielded by the CDA because Yahoo had failed to identify the users of the screen names who had posted defamatory statements about him, and that Yahoo itself was the “content provider” of those statements.

This was Hall's attempt to peel back Yahoo's Section 230 immunity. It's an interesting theory -- Yahoo's failure to identify strips it of immunity. It's also one without any legal basis. This amended complaint didn't do much for Hall. Yahoo responded with one of its own under California's anti-SLAPP law. In support of its motion, Yahoo submitted an affidavit stating it did not create any of the content in its forums, bulletin boards, chatrooms, etc.

Hall simply doubled down.

Hall opposed the demurrer and anti-SLAPP motion, arguing that Yahoo was not shielded from liability under the CDA because it had not provided, in response to Hall’s discovery requests, telephone numbers for the users of the screen names “pddunk@yahoo.com” and “derHoaxster@yahoo.com.”

The anti-SLAPP motion was granted and Hall appealed. The appeals court takes particular interest in Hall's bizarre Section 230 theories.

Hall’s argument that Yahoo was required to identify the persons who posted the objectionable content by providing the names, addresses, telephone numbers, or other identifying information for such persons is legally unsupported. The CDA contains no such requirement, and Hall cites no authority that construes the statute to impose such a requirement. Delfino v. Agilent Technologies, Inc. (2006) 145 Cal.App.4th 790 (Delfino), a case on which Hall relies, undermines rather than supports his position. The court in Delfino concluded that because “there was no evidence that Agilent [the interactive computer service provider] played any role whatsoever in ‘the creation or development’ of” the objectionable content that was the subject of the action, it clearly satisfied the third element required for a finding of CDA immunity. (Id. at p. 807.) Here, there was undisputed evidence that Yahoo was not responsible, in whole or in part, for the content of the emails and posts that are the subject of Hall’s claims. The trial court accordingly did not err by granting the anti-SLAPP motion.

As the court points out earlier in the decision, Yahoo's declaration that it did not post or publish the allegedly defamatory content went uncontested by Hall. Instead, Hall picked his misunderstanding of Section 230 as the hill to die on. On top of having his lawsuit dismissed (both for failure to state a claim and under California's anti-SLAPP law), Hall will now be paying Yahoo's legal cost.

The decision here is another reminder of two things:

1. There is still no federal anti-SLAPP law, something that would greatly discourage baseless lawsuits like these from being brought in federal court. It would also discourage the same behavior in state courts, which is where this one was filed.

2. Section 230 provides important protections for service providers who are almost always the easiest party to find and serve, even if they've done nothing else but provide a platform for people to speak their minds.

Filed Under: cda 230, intermediary liability, personal information, section 230, thomas hall
Companies: yahoo

Facebook, Twitter Consistently Fail At Distinguishing Abuse From Calling Out Abuse

from the the-wrong-approach dept

Time and time again, we see that everyone who doesn't work in the field of trust and safety for an internet platform seems to think that it's somehow "easy" to filter out "bad" content and leave up "good" content. It's not. This doesn't mean that platforms shouldn't try to deal with the issue. They have perfectly good business reasons to want to limit people using their systems to abuse and harass and threaten other users. But when you demand that they be legally responsible -- as Germany (and then Russia) recently did -- bad things happen, and quite frequently those bad things happen to the victims of abuse or harassment or threats.

We just wrote about Twitter's big failure in suspending Popehat's account temporarily, after he posted a screenshot of a threat he'd received from a lawyer who's been acting like an internet tough guy for a few years now. In that case, the person who reviewed the tweet keyed in on the fact that Ken White had failed to redact the contact information from the guy threatening him -- which at the very least raises the question of whether or not Twitter considers threats of destroying someone's life to be less of an issue than revealing that guy's contact information, which was already publicly available via a variety of sources.

But, it's important to note that this is not an isolated case. In just the past few days, we've seen two other major examples of social media platforms banning or punishing the victims of harassment and abuse for posting about it, rather than the perpetrators. The first is the story of Francie Latour, as told in a recent Washington Post article, where she explains how she went on Facebook to vent about a man in a Boston grocery store loudly using the n-word to describe her and her two children, and Facebook's response was to ban her from Facebook.

But within 20 minutes, Facebook deleted her post, sending Latour a cursory message that her content had violated company standards. Only two friends had gotten the chance to voice their disbelief and outrage.

The second story comes from Ijeoma Oluo, who posted to Medium about a strikingly similar situation. In this case, she made what seems to me to be a perfectly innocuous joke about feeling nervous for her safety as a black woman in a place with many white people. But a bunch of rabid angry people online got mad at her about it and start sending all sorts of abusive tweets and hateful messages to her on Facebook. She actually says that Twitter was pretty good at responding to reports of abusive content. But, as in the Latour story, Facebook responded by banning Oluo for talking about the harassment she was receiving.

And finally, facebook decided to take action. What did they do? Did they suspend any of the people who threatened me? No. Did they take down Twitchy’s post that was sending hundreds of hate-filled commenters my way? No.

They suspended me for three days for posting screenshots of the abuse they have refused to do anything about.

That, of course, is a ridiculous response by Facebook. And Oluo is right to call them out on it, just as Latour and White were right to point out the absurdity of their situations.

But, unfortunately, the response of many people to this kind of thing is just "do better Facebook" or "do better Twitter." Or, in some cases, they even go so far as to argue that these companies should be legally mandated to take down some of the content. But this will backfire for the exact same reason that these ridiculous situations happened in the first place. When you run a platform and you need to make thousands or hundreds of thousands or millions of these kinds of decisions a day, you're going to make mistakes. And that's not because they're "bad" at this, it's just the nature of the beast. With that many decisions -- many of which involve people demanding immediate action -- there's no easy way to have someone drop in and figure out all of the context in the short period of time they have to make a decision.

On top of that, because this has to be done at scale, you can't have a team that is all skilled in understanding context and nuance and culture. Nor can you have people who can spend the necessary time to dig deeper to figure out and understand the context. Instead, you end up with a ruleset. And it has to be standardized so that non-experts are able to make judgments on this stuff in a relatively quick timeframe. That's why about a month ago, there was a kerfuffle when Facebook's "hate speech rule book" was leaked, and it showed how it could lead to situations where "white men" were going to be protected.

And when you throw into this equation the potential of legal liability, a la Germany (and what a large group of people are pushing for in the US), things will get much, much worse. That's because when there's legal liability on the line, companies will be much faster to delete/suspend/ban, just to avoid the liability. And many people calling for such things will be impacted themselves. None of the people in the stories above could have reasonably expected to get banned by these platforms. But, when people demand that platforms "take responsibility" that's what's going to happen.

Again, this is not in any way to suggest that online platforms should be a free for all. That would be ridiculous and counterproductive. It would lead to everything being overrun by spam, in addition abusive/harassing behavior. Instead, I think the real answer is that we need to stop putting the burden on platforms to make all the decisions, but figure out alternative ways. I've suggested in the past, that one possible solution is turning the tools around. Give end users much more granular control about how they can ban or block or silence content they don't want to see, rather than leaving it up to a crew of people who have to make snap decisions on who's at fault when people get angry online.

Of course, there are problems with my suggestion as well -- it could certainly accelerate the issues of self-contained bubbles of thought. And it could also result in plenty of incorrect blocking as well. But the larger point is that this isn't easy, and every single magic bullet solution has serious consequences, and often those consequences fall on the people who are facing the most abuse and harassment, rather than on those doing the abuse and harassment. So, yes, platforms need to do better. The three stories above are all ridiculous, and ended up harming people who were highlighting harassing behavior. But continuing to rely on platforms and teams of people to weed out content someone deems "bad" is not a workable solution, and it's one that will only lead to more of these kinds of stories.

And, worst of all, the abusers and harassers know and thrive on this. The guy who got Ken White's account banned gloated about it on Twitter. I'm sure the same was true of the folks who went after Oluo and likely "reported" her to Facebook. Any time you rely on the platform to be the arbiter, remember that he people who want to harass others quickly learn that they can use that as a tool for further harassment themselves.

Filed Under: abuse, free speech, harassment, intermediary liability, moderation, platforms, policing
Companies: facebook, twitter