Section 230 Matters. Congress Needs To Be Reminded Of That

from the it-really-does dept

If you represent a tech company, please consider signing our letter to Congress from tech companies about concerns regarding the latest attempt to dismantle Section 230 of the CDA in a manner that will be completely counterproductive to the stated goals of the bill. Sex trafficking is an incredibly serious issue, and we support efforts by law enforcement and various groups to fight it -- but we are greatly concerned that the approach being put forth here will actually be counterproductive to that goal, and create numerous other problems.

As we've discussed over the past week, Congress has launched a highly questionable attempt to modify Section 230 of the CDA, ostensibly as an effort to takedown Backpage (ignoring (1) that they already passed another law two years ago targeting Backpage and then never used it (2) that the DOJ is already able to go after Backpage if it broke the law and may be investigating the company as we speak and (3) that Backpage has already shut down its adult section), but which will actually create havoc for basically the entire internet. It will do a variety of damaging things, including opening up every tech platform to frivolous lawsuits from individuals and fishing expeditions from states Attorneys General, if anyone uses any part of a platform in a manner that touches on sex trafficking. We've already discussed how the bill could kill Airbnb, for example.

But, really, the worst part of the bill is that it's entirely counterproductive. The tech industry may not be experts in trafficking, but we now have decades of experience dealing with what happens when you blame platforms for the actions of their users -- and the bill here won't help deal with trafficking, but could make a bad problem worse. CDA 230 works by encouraging platforms to moderate their content, by making sure that any attempts to moderate don't make the platform liable for the actions of users. This enables platform companies to freely monitor usage and manage their platforms responsibly. But under the new bill, should it become law, any "knowledge" of trafficking activity using the platform puts the platform itself at risk of violating both civil and criminal law. As such, any monitoring behavior is likely to be used against the platform. This only incentivizes companies to take a total "hands-off" approach to policing their own platform. And this is doubly ridiculous because the tech industry has worked closely with law enforcement over the years to combat trafficking, creating a variety of tech platforms and using big data to help find, target and stop trafficking. But under this bill, participating in those programs very likely will be used against these platforms. And this would be a real tragedy as it could lead to more trafficking, rather than less.

And, on top of that, as we saw when Craigslist was targeted in the past and trafficking just moved over to Backpage, the trafficking will continue and will move to platforms less interested in working with law enforcement (perhaps overseas platforms). The end result: (1) doesn't stop trafficking, (2) pushes tech companies not to cooperate for fear of greater liability and (3) creates massive other problems for those tech companies in the way of increased liability and frivolous lawsuits. It's a bad idea on nearly every front.

Mike Godwin has summarized the problems of the bill nicely with the following analogy:

... the bill would be as if Congress decided that FedEx was legally liable for anything illegal it ever carries, even where it’s ignorant of the infraction and acts in good faith. That would be a crazy notion in itself, but rather than applying only to FedEx's tech equivalents—the giants like Google and Facebook—it also would apply to smaller, less well-moneyed services like Wikipedia. Even if the larger internet companies can bear the burden of defending against a vastly increased number of prosecutions and lawsuits—and that’s by no means certain—it would be fatal for smaller companies and startups. Amending Section 230's broad liability protection for internet service providers would expand the scope of criminal and civil liability for those services in ways that would force the tech companies to drastically alter or eliminate features that users have come to rely on. It could strangle many internet startups in their cribs.

Because of all of this, our think tank organization, the Copia Institute, teamed up with our friends at Engine to put together an open letter from tech companies to Congress about this bill. We've put it up at 230matters.com. Some great tech/internet companies have already signed onto the letter, including Reddit, GitHub, Cloudflare, Medium, Automattic, Rackspace, Tucows and more. We'll be sending a second version of the letter in a few weeks, so if you represent a tech/internet company and have the authority to do so, you can sign the letter on that site (if you work at such a company and don't have the authority, please forward this to someone who does...). We all support the larger goal of stopping sex trafficking, but as these tech companies know all too well, this bill will actually harm that goal by making it harder for the companies to help in that process.

Filed Under: cda 230, intermediary liability, section 230, sex trafficking, unintended consequences

How Congress' Attempt To Break CDA230 Could Kill Airbnb

from the liability-liability-liability dept

Earlier this week, we wrote about a dangerous bill to punch a giant hole in Section 230 of the CDA. We spent a lot of time in that post detailing how problematic the bill is and how it would actually be counterproductive to the stated goal of stopping human trafficking. But, beyond just being counterproductive to the stated goal, the bill would likely create fairly massive negative consequences for tons of internet companies. If anyone used any part of that company's products and services for trafficking, it would open up companies not just to liability, but to costly legal action, even if they're eventually vindicated.

And I wanted to dig into one example: Airbnb. As we've discussed in the past, Airbnb relies heavily on CDA 230, because otherwise, any time anything went wrong with an Airbnb hosted place, Airbnb would face potentially crippling lawsuits. And I'm thinking about Airbnb specifically, because of a recent ruling that Eric Goldman pointed out, in which Airbnb's largest competitor VRBO was saved by CDA 230. You can go over to Eric's blog to read the details, but the really short version is that someone booked a "luxury resort" via VRBO for a ridiculous sum of money, and the rental units never happened. The victims targeted VRBO with the lawsuit, but the court has none of it.

The plaintiffs claimed VRBO qualified as a “seller of travel services,” which would subject it to heightened regulation. The court disagrees: “HomeAway merely provides a venue for others to sell or provide lodging, but does not provide the actual facility where people can ‘lodge.'” See the uncited SF Housing Rights Committee v. Homeaway ruling. Further, if VRBO did constitute a seller of travel services, Section 230 would apply: “To hold HomeAway liable for misleading or inaccurate material (e.g., images from another property listing appearing on a different HomeAway website being duplicated on the VBRO.com Jewels of Belize rental account) in the third party created Jewels of Belize listing contravenes Section 230 of the CDA.”

To get around Section 230, the plaintiffs invoked VRBO’s “Basic Rental Guarantee,” which provides reimbursement for certain types of fraud (but doesn’t cover direct wire transfers like those at issue here). VRBO denied the reimbursement claim, concluding that the listing came from an authorized property owner and the property actually existed (but apparently had serious problems). The court says VRBO did what it promised to do in the “guarantee.” The fact VRBO used the term “guarantee” (a term I wouldn’t have chosen personally) didn’t convert the reimbursement promise into something more.

Now, there's a somewhat reasonable argument to be made that it would be smart business strategy for VRBO to handle the situation better and to reimburse these people. But making the company legally liable is another story.

So, now let's get back to SESTA, the bill that was released earlier this week. Surely, some of you are thinking, that's not a big deal for Airbnb? After all, everyone's just talking about how it's designed to takedown Backpage (ignoring that Backpage already shut down its adult section, and current law already lets the DOJ go after Backpage if it violated federal trafficking laws). And Airbnb isn't Backpage. But... there actually have been a whole bunch of stories this year claiming that prostitutes are now using Airbnb. And, with some folks trying to conflate prostitution with trafficking, is it any stretch of the imagination to think lawyers will start suing Airbnb, claiming it's violating federal anti-trafficking laws?

As Eric Goldman asks in his post:

In light of that, how would Airbnb and VRBO change their behavior to reduce their potential liability for sex trafficking pursuant to the proposed bills? Heck if I know, and I doubt Congress knows either.

Put yourself in the shoes of Airbnb and tell me: how would you completely rule out that anyone could possibly abuse the Airbnb service for trafficking? It's... not easy. This doesn't mean Airbnb wants this activity to happen via it's platform. I'm 100% sure that it does not. It would be thrilled if there were an easy to way to stop it. But... it's not. Like, this is a basic impossibility. And yet, if it happens, then suddenly the companies themselves could be liable for criminal activity. Criminal activity that was done by others, that Airbnb would have no effective way to stop, short of shutting down the site or doing something ridiculous and drastic. That... seems like a pretty big overreaction. Yes, trafficking is a problem, but this bill is sending a wrecking ball through the internet as it seeks out one particular company.

And, yes, I get that some people don't like Airbnb, so maybe they're fine with this kind of collateral damage, but Airbnb is just one example here. Plenty of other sites that you probably do like will face similar problems. This is a bad bill that won't even help with its stated goals, but will create serious problems for people around the globe.

Filed Under: cda 230, intermediary liability, liability, prostitution, section 230, trafficking, unintended consequences
Companies: airbnb, vrbo

Russia Does A 'Copy/Paste' Of Germany's New 'Hate Speech' Online Censorship Law

from the well,-that-wasn't-predictable-at-all dept

A few weeks ago, we warned about a dangerous new German law that would fine social media companies if they didn't magically block "hate speech" on their platforms. As we pointed out, this would lead to widespread censorship, as the risk of liability for leaving up even borderline speech would be massive. And, equally important, this would embolden oppressive, dictatorial and autocratic regimes to press on with their own crackdowns on free speech by using laws like this one and claiming that they're doing the exact same thing as supposedly democratic nations like Germany.

We didn't have to wait long. Reporters Without Borders points us to the news that Russia has now rushed out a bill that is basically a cut and paste of the German law:

Reporters Without Borders (RSF) condemns a Russian bill that would force social networks to remove “unlawful” content within 24 hours of notification. It is based very closely on a law that was adopted in Germany on 30 June.

The Russian bill shows that when leading democracies devise draconian legislation, they provide repressive regimes with ideas. Submitted to the Duma on 12 July by members of President Vladimir Putin’s United Russia party, the bill’s references to the German law are explicit.

Just like the German bill, the Russian bill would allow anyone to claim certain content is "unlawful" and then the platforms would have 24 hours to remove the content or face massive fines. This will, inevitably, enable much greater control and censorship (already an issue in Russia). But it will be more difficult to argue that Russia is doing something "bad" here as the Russians will quickly point out that Germany has identical legislation. And I wouldn't be surprised to see other countries, such as Iran or China, put in place similar "laws" themselves.

Filed Under: censorship, germany, hate speech, intermediary liability, liability, platforms, russia
Companies: facebook, google

Germany Officially Gives Up On Free Speech: Will Fine Internet Companies That Don't Delete 'Bad' Speech

from the this-won't-end-well dept

Yeah, yeah, before you rush to the comments and start justifying this by saying that Europe doesn't respect free expression in the same way the US does, let's just say while that may be true, this is still bad: Germany has moved forward with a plan to fine internet companies which don't quickly censor the internet. Censor what, though? Three loosely defined (and easily abused) categories: hate speech, criminal material and fake news.

Social media companies face fines of up to €50m (£43m) if they persistently fail to remove illegal content from their sites under a new law passed in Germany

The German parliament on Friday approved the bill aimed at cracking down on hate speech, criminal material and fake news on social networks – but critics warn it could have drastic consequences for free speech online.

And, yes, again Europe has very different standards for free expression -- and Germany, in particular, has a long history of trying to suppress what it considers "bad" speech regarding some of its historical actions (Godwin'd!). Even so, this is dangerous and will be abused to stifle all sorts of important expression:

The German justice minister, Heiko Maas, who was the driving force behind the bill, said: “Freedom of speech ends where the criminal law begins.” Maas said official figures showed the number of hate crimes in Germany increased by more than 300% in the last two years.

Even accepting that free speech ends where criminal law begins, that doesn't justify fining the platforms. If people are posting "illegal" content, go after them for breaking the law. Don't go after the tools they use. By putting massive liability risks on platforms, those platforms will almost certainly overcompensate and over censor to avoid any risk of liability. That means a tremendous amount of what should be protected speech gets silence, just because these companies don't want to get fined. Even worse, the big platforms can maybe hire people to handle this. The littler platforms? They basically can't risk operating in Germany any more. Berlin is a hotbed of startups, but this is going to seriously harm many of them.

The new law also has an even weirder provision, putting liability not just on the platforms, but on individual employees at online platforms who are designated the Chief Censors for that platform:

Aside from the hefty fine for companies, the law also provides for fines of up to €5m for the person each company designates to deal with the complaints procedure if it doesn’t meet requirements.

Who the hell is going to want that job? Make one mistake in failing to censor something, and you may be bankrupted.

Just a little while ago we wrote about how difficult it can be for a platform to be calling the shots on what's worth censoring and what's not. Since there's so much content, the analysis of each piece of content needs to be standardized in a manner that tends to be absurd. It appears that those supporting this law don't have any interest in the realities involved, but think that by passing this legislation, they've waved a magic wand. Yes, putting liability onto platforms (and employees) will likely lead to greater suppression of speech people dislike -- but also of important and necessary speech. There appears to have been no effort to consider how dangerous that might turn out to be.

Filed Under: censorship, free speech, germany, hate speech, intermediary liability, social media

Dangerous Copyright Ruling In Europe Opens The Door To Widespread Censorship

from the bad-news dept

The EU Court of Justice (CJEU) has been issuing some seriously dangerous copyright rulings recently. Last fall, for example, there was the ruling saying that mere links to infringing content could be direct infringement, rather than indirect (or not infringing at all). Even worse, that ruling argued that posting hyperlinks on a site that is "for profit" requires an assumption that the platform is sophisticated enough to make sure the links are not to infringing content. As we warned that would lead to problematic results, such as a followup ruling in Sweden that merely embedding a YouTube video can be seen as infringing.

Given that background it is not surprising, but still rather unfortunate, that the latest CJEU ruling on copyright takes this to the next level. It basically ignores the clear safe harbors of the EU's Copyright Directive -- which note that platforms should not be responsible for infringing actions of their users -- and says that the Pirate Bay is liable for infringement by its users because it has made infringing works "available."

In today’s judgment, the Court holds that the making available and management of an online sharing platform must be considered to be an act of communication for the purposes of the directive.

That's... a very dangerous interpretation of the law. It undermines two very important concepts in just one sentence. The first is the basic concept of intermediary liability protections -- which say that a platform should not and cannot be held liable for the actions of its users. This should be common sense. If the users break the law, go after the users, not the tools they use. This ruling does the opposite. The second concept that is undermined here is that for infringement to actually occur, distribution (i.e., actual copying) has to happen. Instead, this ruling embraces the twisted notion that merely "making available" a work is somehow infringing. And, here, the court not only gets both of those important concepts wrong, but merges the wrongness together, such that a platform that people use to make works available is suddenly liable for the theoretical infringement of those works. That's... bizarre.

And, of course, the end result of this is that the CJEU is basically clearing the way for courts to order ISPs to block the Pirate Bay entirely (even non-infringing content on TPB). The folks over at TorrentFreak have the background details on the case, which involve attempts by the Dutch anti-piracy organization BREIN to demand that ISPs block all access to TPB. This ruling clears the way for that to happen.

There are other problematic parts of the CJEU ruling (the full text is not yet out, but this is from the press release from the CJEU explaining the ruling). Here, for example, the Court tries to justify ignoring the intermediary liability protections that should be afforded to a platform by trying to argue that TPB somehow does more, which makes it deserving of being liable:

Whilst it accepts that the works in question are placed online by the users, the Court highlights the fact that the operators of the platform play an essential role in making those works available. In that context, the Court notes that the operators of the platform index the torrent files so that the works to which those files refer can be easily located and downloaded by users. ‘The Pirate Bay’ also offers — in addition to a search engine — categories based on the type of the works, their genre or their popularity. Furthermore, the operators delete obsolete or faulty torrent files and actively filter some content.

But think about that for a second. That's the kind of thing that basically any platform does. Indexing what users post on your platform is a standard thing. I mean, our search here has indexed what uses post in the comments, but that shouldn't magically make us liable for what users post in the comments. Second, the fact that they "delete obsolete or faulty torrent files and actively filter some content" shouldn't magically make them liable. In fact, this is exactly why, in the US context, we have a section of CDA 230 that explicitly says that moderating some content shouldn't make you liable for that which you left up. That's because the end result of reading the law this way will be the exact opposite of what most people want. That is, based on this ruling platforms should not moderate any content at all because the court says that doing so suddenly makes you liable for that which you did not moderate. Thus it actually actively discourages content moderation.

The other problematic part from the press release about the ruling is this:

Moreover, the operators of ‘The Pirate Bay’ have been informed that their platform provides access to copyright-protected works published without the authorisation of the rightholders. In addition, the same operators expressly display, on blogs and forums accessible on that platform, their intention of making protected works available to users, and encourage the latter to make copies of those works. In any event, it is clear from the Hoge Raad’s decision that the operators of ‘The Pirate Bay’ cannot be unaware that this platform provides access to works published without the consent of the rightholders.

Again, this should not and cannot be the basis for liability. Again, within the US context, we went over this in the Viacom v. YouTube case. It's one thing to know that some infringement happens via your platform. It's another thing entirely to know which content is infringing. That's not as easy to figure out as some people insist. Again, this kind of thinking would outlaw things like the VCR. Yes, the makers of VCRs knew that some infringing content would be viewed or recorded via the devices, but the device makers were not held liable for that. This CJEU ruling seems to break with all of that.

And while representatives from The Pirate Bay are laughing off this ruling (quoted in the Torrentfreak article above), it won't be a laughing matter for many other companies who may face expanded liability because of this mixed up ruling. It also, likely, will depress entrepreneurship and innovation in the platform space in the EU. All because the legacy content industry is so infatuated with The Pirate Bay that it won't focus on improving its own offerings instead.

Filed Under: censorship, cjeu, copyright, intermediary liability, making available
Companies: brein, the pirate bay

May And Macron's Ridiculous Adventure In Censoring The Internet

from the these-are-bad-ideas,-marc dept

For some observers, struggling UK Prime Minister Theresa May and triumphant French President Emmanuel Macron may seem at somewhat opposite ends of the current political climate. But... apparently they agree on one really, really bad idea: that it's time to massively censor the internet and to blame tech companies if they don't censor enough. We've been explaining for many years why this is a bad idea, but apparently we need to do so again. First, the plan:

The prime minister and Emmanuel Macron will launch a joint campaign on Tuesday to tackle online radicalisation, a personal priority of the prime minister from her time as home secretary and a comfortable agenda for the pair to agree upon before Brexit negotiations begin next week.

In particular, the two say they intend to create a new legal liability for tech companies if they fail to remove inflammatory content, which could include penalties such as fines.

It's no surprise that May is pushing for this. She's been pushing to regulate the internet for quite some time, and it's a core part of her platform (which is a bit "weak and wobbly" as they say these days). But, Macron... well, he's been held up repeatedly as a "friend" to the tech industry, so this has to be seen as a bit of a surprise in the internet world. Of course, there were hints that he might not really be all that well versed in the way technology works when he appeared to support backdoors to encryption. This latest move just confirms an unfortunate ignorance about the technology/internet landscape.

Creating a new legal liability for companies that fail to remove inflammatory content is going to be a massive disaster in many, many ways. It will damage the internet economy in Europe. It will create massive harms to free speech. And, it won't do what they seem to think it will do: it won't stop terrorists from posting propaganda online.

First, a regime that fines companies for failing to remove "inflammatory content" will lead companies to censor broadly, out of fear that any borderline content they leave up may open them up to massive liability. This is exactly how the Great Firewall of China works. The Chinese government doesn't just say "censor bad stuff" it tells ISPs that they'll get fined if they allow bad stuff through. And thus, the ISPs over-censor to avoid leaving anything that might put them at risk online. And, when it comes to free speech, doing something "the way the Chinese do things" tends not to be the best idea.

Second, related to that, once they open up this can of worms, they may not be happy with how it turns out. It's great to say that you don't think "inflammatory content" should be allowed online, but who gets to define "inflammatory" makes a pretty big difference. As we've noted, you always want to design regulations as if the people you trust the least are in power. This is not to say that May or Macron themselves would do this, but would you put it past some politicians in power to argue that online content from political opponents is too "inflammatory" and thus must be removed? What about if the press reveals corruption? That could be considered "inflammatory" as well.

Third, one person's "inflammatory content" is another's "useful evidence." We see this all the time in other censorship cases. I've written before about how YouTube was pressured to take down inflammatory "terrorist videos" in the past, and ended up taking down the account of a human rights group documenting atrocities in Syria. It's easy to say "take down terrorist content!" but it's not always easy to recognize what's terrorist propaganda versus what's people documenting the horrors that the terrorists are committing.

Fourth, time and time again, we've seen the intelligence community come out and argue against this kind of censorship, noting that terrorists posting inflammatory content online is a really useful way to figure out what they're up to. Demanding that platforms take down these useful sources of open source intelligence will actually harm the intelligence community's ability to monitor and stop plans of attack.

Fifth, this move will almost certainly be used by autocratic and dictatorial regimes to justify their own widespread crackdown on free speech. And, sure, they might do that already, but removing the moral high ground can be deeply problematic in diplomatic situations. How can UK or French diplomats push for more freedom of expression in, say, China or Iran, if they're actively putting this in place back home. Sure, you can say that they're different, but the officials from those countries will argue it's the exact same thing: you're censoring the internet to "protect" people from "dangerous content." Well, they'll argue, that's the same thing that we do -- it's just that we have different threats we need to protect against.

Sixth, this will inevitably be bad for innovation and the economy in both countries. Time and time again, we've seen that leaving internet platforms free from liability for the actions of their users is what has helped those companies develop, provide useful services, employ lots of people and generally help create new economic opportunities. With this plan, sure, Google and Facebook can likely figure out some way to censor some content -- and can probably stand the risk of some liability. But pretty much every other smaller platform? Good luck. If I were running a platform company in either country, I'd be looking to move elsewhere, because the cost of complying and the risk of failing to take down content would simply be too much.

Seventh, and finally, it won't work. The "problem" is not that this content exists. The problem is that lots of people out there are susceptible to such content and are interested and/or swayed by it. That's a much more fundamental problem, and censoring such content doesn't do much good. Instead, it tends to only rally up those who were already susceptible to it. They see that the powers-that-be -- who they already don't trust -- find this content "too dangerous" and that draws them in even closer to it. And of course that content will find many other places to live online.

Censoring "bad" content always seems like an easy solution if you haven't actually thought through the issues. It's not a surprise that May hasn't -- but we had hopes that perhaps Macron wouldn't be swayed by the same weak arguments.

Filed Under: censorship, emmanuel macron, filtering, france, free speech, inflammatory content, intermediary liability, terrorism, terrorist content, theresa may, uk
Companies: facebook, google

The Importance Of Defending Section 230 Even When It's Hard

from the preventing-tough-cases-from-making-bad-law dept

The Copia Institute filed another amicus brief this week, this time in Fields v. Twitter. Fields v. Twitter is one of a flurry of cases being brought against Internet platforms alleging that they are liable for the harms caused by the terrorists using their sites. The facts in these cases are invariably awful: often people have been brutally killed and their loved ones are seeking redress for their loss. There is a natural, and perfectly reasonable, temptation to give them some sort of remedy from someone, but as we argued in our brief, that someone cannot be an internet platform.

There are several reasons for this, including some that have nothing to do with Section 230. For instance, even if Section 230 did not exist and platforms could be liable for the harms resulting from their users' use of their services, for them to be liable there would have to be a clear connection between the use of the platform and the harm. Otherwise, based on the general rules of tort law, there could be no liability. In this particular case, for instance, there is a fairly weak connection between ISIS members using Twitter and the specific terrorist act that killed the plaintiffs' family members.

But we left that point to Twitter to ably argue. Our brief focused exclusively on the fact that Section 230 should prevent a court from ever even reaching the tort law analysis. With Section 230, a platform should never find itself having to defend against liability for harm that may have resulted from how people used it. Our concern is that in several recent cases with their own terrible facts, the Ninth Circuit in particular has found itself willing to make exceptions to that rule. As much as we were supporting Twitter in this case, trying to help ensure the Ninth Circuit does not overturn the very good District Court decision that had correctly applied Section 230 to dismiss the case, we also had an eye to the long view of reversing this trend.

The problem is, like the First Amendment itself, speech protections only work as speech protections when they always work. When one can find exemptions here and there, all of a sudden none of these protections are effective and it chills the speech of those who were counting on them because no one can be sure whether or not the speech will ultimately be protected. In the case of Section 230, that chilling arises because if the platforms cannot be sure whether they will be protected from liability in their users' speech, then they will have to assume they are not. Suddenly they will have to make all the censoring choices with respect to their users' content that Section 230 was designed to prevent, just to avoid the specter of potentially crippling liability.

One of the points we emphasized in our brief was how such an outcome flouts what Congress intended when it passed Section 230. As we said then, and will say again as many times as we need to, the point of Section 230 is to encourage the most beneficial online speech and also minimize the worst speech. To see how this dual-purposed intent plays out we need to look at the statute as a whole, beyond the part of it that usually gets the most attention, at Subsection (c)(1), which is about how platforms are immune from liability manifest in their users' speech. There is also another equally important part of the statute, at Subsection (c)(2), that immunizes platforms from liability when they take steps to minimize harmful online content on their systems. This subsection rarely gets attention, but it's important not to overlook, especially as people look at the effect of the first subsection and worry that it might encourage too much "bad" speech. Congress anticipated this problem and built in a remedy as part of a balanced approach to encourage the most good speech and least bad speech. The problem with now holding online services liable for bad uses of their platforms is that it distorts this balance, and in distorting this balance undermines both these goals.

We used the cases of Barnes v. Yahoo and Doe 14 v. Internet Brands to illustrate this point. Both of these are cases where the Ninth Circuit did make exemptions and found Section 230 not to apply to certain negative uses of Internet platforms. For instance, in Barnes Section 230 was actually found to apply to part of the claim directly relating to the speech in question, which was a good result, but the lawsuit also included a promissory estoppel claim, and the Court decided that because it was not directly related to liability arising from content it could go forward. The problem here was that Yahoo had separately promised to take down certain content, and so the Court found it potentially liable for not having lived up to its promise. But as we pointed out, the effect of the Barnes case was that now platforms never promise to take content down. Even though Congress intended for Section 230 to help Internet platforms perform a hygiene function to help keep the Internet free of the worst content, by discouraging platforms from going the extra mile it has instead had the opposite effect from the one Congress intended. That's why courts should not continue to find reasons to limit Section 230's applicability. Even if they think they have good reason to find one, that very justification itself will be better advanced when Section 230's protection can be most robust.

We also pointed out that in terms of the other policy goal behind Section 230, to encourage more online speech, divining exemptions from Section 230's coverage would undermine that goal as well. In this case the plaintiffs want providers to have to deny terrorists the use of their platforms. As a separate amicus brief by the Internet Association explained, platforms actually want to keep terrorists off and go to great lengths to try to do so. But as the saying goes, "One man's terrorist is another man's freedom fighter." In other words, deciding who to label a terrorist can often be a difficult thing to do, as well as an extremely political decision to make. It's certainly beyond the ken of an "intermediary" to determine -- especially a smaller, less capitalized, or potentially even individual one. (Have you ever had people comment on one of your Facebook posts? Congratulations! You are an intermediary, and Section 230 applies to you too.)

Even if the rule were that a platform had to check prospective users' names against a government list, there are significant constitutional concerns, particularly regarding the right to speak anonymously and the prohibition against prior restraint, that arise from having to make these sorts of registration denial decisions this way. There are also often significant constitutional problems with how these lists are made at all. As the amicus brief by EFF and CDT also argued, we can't create a system where the statutory protection platforms depend on to be able to foster online free speech is conditioned on coercing platforms to undermine it.

Filed Under: fields v. twitter, free speech, intermediary liability, material support for terrorism, platforms, section 230, tamara fields, terrorism
Companies: twitter

Copyright Law In Europe Could Be About To Get Ridiculously Stupidly Bad In Ways That Will Undermine The Internet

from the this-is-so-dumb dept

Over the last few years, the EU has been going through a pretty big copyright reform process. And it's been quite the roller coaster with some good ideas and some bad ideas mixed in at times. MEP Julia Reda of the Pirate Party has been the point person in calling out the bad ideas and pushing forward the good ones. She's had a fair bit of success, and recently noted that the EU Parliament seemed to be on the road towards a "reasonable position" on copyright. Except... Hollywood can never accept such a thing. And thus, there's an ongoing attempt to slip in some really, really bad ideas, even worse than some of what we'd seen before:

On June 8, the Internal Market and Consumer Protection (IMCO) Committee will decide its standpoint. This is a crucial step in the copyright reform process, because the IMCO committee is jointly responsible for the Parliament position on one of the most controversial parts of the reform: the introduction of mandatory censorship filters on online services such as social media.

Today it was revealed that MEP Pascal Arimont from the European People’s Party (EPP) is trying to sabotage the Parliamentary process, going behind the negotiators of the political groups and pushing a text that would make the Commission’s original bad proposal look tame in comparison. This is a tactic he recently already successfully applied to prevent the committee from adopting a progressive position on overcoming geoblocking. If he succeeds again, the result would once more do the opposite of what the Committee is tasked to do: Protecting European consumers.

So what's he pushing? Something that would basically make it very, very risky to run a website that allows any kind of commentary. It would basically make the internet safe for giant media companies... and no one else.

Instead of finding a delicate balance between the interests of rights holders, online services and users as agreed by the other political groups, Mr. Arimont’s “alternative compromise” reads like a wish list of the content industry, with utter disregard for the Charter of Fundamental Rights and long-established principles of EU law.

He wants to double down on the obligation for content filtering, which he doesn’t want to just apply to services hosting “large amounts” of copyrighted content, as proposed by the Commission, but to any service facilitating the availability of such content, even if the service is not actually hosting anything at all. This could require content filters even for services that are linking to content on other websites, because hyperlinks, according to the Court of Justice of the European Union (CJEU), can be considered a copyright infringement under certain circumstances.

The only exception foreseen would be for micro-businesses that are no older than 5 years. So if you’ve been self-employed for more than 5 years, rules the Commission wrote with the likes of YouTube and Facebook in mind would suddenly also apply to your personal website.

At the same time, Mr. Arimont seeks to completely override the court ruling of the CJEU that states that general monitoring of all users’ activities constitutes a violation of fundamental rights – by brazenly stating that monitoring all users’ uploads for specific copyrighted works is not “general” monitoring, as if it were possible to reliably find all needles in a haystack without looking at the entire haystack.

He then goes on to state that any online service that so much as uses an algorithm to improve the presentation of user-uploaded content (like sorting files alphabetically by their name) would be considered directly liable for any copyright infringement. Where the European Commission proposal was trying to gloss over the fact that it was trying to re-write the intermediary liability rules, Mr. Arimont’s text spells it out for us: “The service providers that play such an active role are ineligible for the liability exemption” (active role being defined by him as “optimisation for the purpose of the presentation by the service of the uploaded works or subject-matter or their promotion by the service, irrespective of the nature of the means used therefor“).

And... that's not all. He's also got a link tax he'd like to shove down your throat:

Since all political groups in the committee except for the EPP (and the populist EFDD) had tabled amendments completely deleting the neighbouring right for publishers, the rapporteur’s suggestion to follow this proposal in the compromise amendments is logical. Of course Mr. Arimont was not happy with this outcome, but his “alternative compromise” reads more like a provocation than an attempt to find middle ground. Contrary to some of his EPP colleagues, who proposed the compromise wording developed by the lead committee rapporteur Therese Comodini (EPP), he goes for a drastic extension of the Commission’s proposed extra copyright for news publishers.

Where the Commission proposes a protection of 20 years for the use of news snippets in a digital form, he extends it to 50 years, for both offline and online uses. Reciting a headline from the cold war era would suddenly require permission from the original publisher, who may have long since gone out of business. Where the Commission wants to apply this right to press publishers only, Mr. Arimont explicitly includes academic publishers, a move that would spell disaster for any open access initiatives.

In an attempt to silence the most vocal critics of this copyright extension, Mr. Arimont generously clarifies that single words should not be covered by the new rights, and neither should hyperlinks. That of course means that anything that goes beyond a single word – two words – or the naked URL to a news article would be covered by the neighbouring right. And who’s going to click a link that doesn’t even use the headline of the news article as an indication of what can be found at the other end?

If you don't recall, this is basically a proposal saying that you'd have to pay major media publishers to link to them with a snippet. This is the proposal that shortsighted news media companies have been pushing for under the silly idea that Google News is unfairly "profiting" from their news... while sending them traffic for free. Instead, these companies want Google to keep sending them traffic... but also pay for the privilege. But, now, with this proposal, it appears that this will expand much further and would undermine the basic concept of linking online.

And... that's not all. An EFF blog post which discusses the problems with this proposal also notes that there's another bad proposal coming from elsewhere, such as killing off image search:

Another of the senseless proposals that has been published this week, this time not by the Shadow Rapporteur of IMCO but by the CULT committee again, is a proposed amendment to extend the "value gap" proposal to include a new tax on search engines that index images, as for example Google and Bing do. This proposed amendment [PDF] provides:

Information society services that automatically reproduce or refer to significant amounts of visual works of art for the purpose of indexing and referencing shall conclude licensing agreements with right holders in order to ensure the fair remuneration of visual artists.

It's unclear how much support this particular proposed amendment may have, but should it find its way into the final CULT committee report, we can well imagine that just as Google News shut down in Spain following Spain's implementation of a link tax for news publishers, the closure of image search services won't be far behind. It's hard to see that outcome as being any less detrimental to artists as it would be for users.

The really amazing thing here is just how regressive and backwards looking these proposals are. They are clearly not for the benefit of the public. They are clearly not for the benefit of innovation or of information sharing. Rather, they all appear to be focused on one thing: helping out large legacy companies who have failed to fully adapt to the modern internet era. This is not just bad policy, it's extraordinarily bad for the public and for future innovation.

Filed Under: copyright, eu, europe, filtering, intermediary liability, julia reda, pascal arimont, snippet tax

Helping Platforms Protect Speech By Avoiding Bogus Subpoenas

from the it's-important dept

We often talk about how protecting online speech requires protecting platforms, like with Section 230 immunity and the safe harbors of the DMCA. But these statutory shields are not the only way law needs to protect platforms in order to make sure the speech they carry is also protected.

Earlier this month, I helped Techdirt's think tank arm, the Copia Institute, file an amicus brief in support of Yelp in a case called Montagna v. Nunis. Like many platforms, Yelp lets people post content anonymously. Often people are only willing to speak when they can do so without revealing who they are (note how many people participate in the comments here without revealing their real names), which is why the right to speak anonymously has been found to be part and parcel of the First Amendment right of free speech . It's also why sites like Yelp let users post anonymously, because often that's the only way they will feel comfortable posting reviews candid enough to be useful to those who depend on sites like Yelp to help them make informed decisions.

But as we also see, people who don't like the things said about them often try to attack their critics, and one way they do this is by trying to strip these speakers of their anonymity. True, sometimes online speech can cross the line and actually be defamatory, in which case being able to discover the identity of the speaker is important. This case in no way prevents legitimately aggrieved plaintiffs from using subpoenas to discover the identity of those whose unlawful speech has injured them to sue them for relief. Unfortunately, however, it is not just people with legitimate claims who are sending subpoenas; in many instances they are being sent by people objecting to speech that is perfectly legal, and that's a problem. Unmasking the speakers behind protected speech not only violates their First Amendment rights to speak anonymously but it also chills the speech the First Amendment is designed to foster generally by making the critical anonymity protection that plenty of legal speech depends on suddenly illusory.

There is a lot that can and should be done to close off this vector of attack on free speech. One important measure is to make sure platforms are able to resist the subpoenas they get demanding they turn over whatever identifying information they have. There are practical reasons why they can't always fight them -- for instance, like DMCA takedown notices, they may simply get too many -- but it is generally in their interest to try to resist illegitimate subpoenas targeting the protected speech posted anonymously on their platforms so that their users will not be scared away from speaking on their sites.

But when Yelp tried to resist the subpoena connected with this case, the court refused to let them stand in to defend the user's speech interest. Worse, it sanctioned(!) Yelp for even trying, thus making platforms' efforts to stand up for their users even more risky and expensive than they already are.

So Yelp appealed, and we filed an amicus brief supporting their effort. Fortunately, earlier this year Glassdoor won an important California State appellate ruling that validated attempts by platforms to quash subpoenas on behalf of their users. That decision discussed why the First Amendment and California State Constitution required platforms to have this ability to quash subpoenas targeting protected speech, and hopefully this particular appeals court will agree with its sister court and make clear that platforms are allowed to fight off subpoenas like this. As we pointed out in our brief, both state and federal law and policy require online speech to be protected, and preventing platforms from resisting subpoenas is out of step with those stated policy goals and constitutional requirements.

Filed Under: anonymous speech, free speech, intermediary liability, section 230, subpoenas
Companies: yelp

Judge Dumps Two Lawsuits Attempting To Hold Facebook Responsible For Acts Of Terrorism

from the not-how-this-works dept

Two lawsuits filed by victims of terrorist attacks against Facebook have been dismissed. Both suits alleged Facebook was complicit in acts of terrorism simply because it (subjectively) didn't do enough to discourage use of the platform by alleged terrorists.

One lawsuit (Cohen v. Facebook) plead on behalf of "20,000 similarly-situated" residents of Israel who continue to face the threat of violence at the hands of terrorist organization Hamas. The other (Force v. Facebook) also featured multiple plaintiffs but was limited to families of victims of Hamas attacks. Neither case presented legitimate complaints and both advanced novel arguments in an attempt to avoid a dismissal under Section 230.

The alternative routes to judgment worked out no better for the plaintiffs, as Eric Goldman reports. The Cohen class action presented a legal theory that couldn't even be addressed by the court due to a lack of jurisdiction. From the decision [PDF]:

the Cohen Plaintiffs do not seek redress for past actions but instead seek prospective, injunctiye relief based on their allegation that Facebook’s actions increase their risk of harm from future terrorist attacks. This claimed harm relies on multiple conjectural leaps, most significantly its central assumption that the Cohen Plaintiffs will be among the victims of an as-yet unknown terrorist attack by independent actors not before the court. The Cohen Complaint contains no factual allegation that could form a basis to conclude that those individuals in particular are at any “substantial” or “certainly impending” risk of future harm. At most, the Complaint shows a general risk of harm to residents of Israel and impliedly asks the court to extract a risk of harm to the Cohen Plaintiffs based on this risk. Without further allegations, however, the court sees no basis to conclude that the Cohen Plaintiffs “specifically will be the target of any future, let alone imminent, terrorist attack.”

Nor can the Cohen Plaintiffs rescue their claims by arguing that they suffer a present harm resulting from their fear of such attacks, as “allegations of a subjective [fear] are not an adequate substitute for a claim of specific present objective harm or threat of a specific future harm.” While the court does not question the sincerity of the Cohen Plaintiffs’ anxieties, their subjective fears cannot confer standing absent a sufficient showing of the risk of future harm.

The Force plaintiffs did not entirely avoid a Section 230 argument, but posited the immunity does not apply to content posted outside of the United States. The court grants that this legal theory is mostly unexplored at this point, but that the plaintiffs cannot avail themselves of an extraterritorial-reliant legal theory while bringing legal action in a US court against a US-based company.

In light of its focus on limiting civil liability, the court concludes that the relevant location is that where the grant of immunity is applied, i.e. the situs of the litigation. Section 230(c)(1) suggests a number of "territorial relationships and events," which are generally divisible into those associated with the underlying claim (e.g., the location of the information content provider, the intemet service provider, or the act of publishing or speaking) and the location associated with the imposition of liability, i.e. where the intemet service provider is to be "treated" as the publisher or speaker. Given the statutory focus on limiting liability, however, the location of the relevant "territorial events" or "relationships" cannot be the place in which the claims arise but instead must be where redress is sought and immunity is needed.

With this in mind, the court concludes that the Force Action does not require an impermissible extraterritorial application of Section 230(c)(1). As the situs of the litigation is New York, the relevant "territorial events or relationships" occur domestically. Accordingly, the court rejects the Force Plaintiffs argument that Facebook should be denied immunity under Section 230(c)(1).

As Goldman points out, this looks like a routine and logical application of Section 230 immunity, but if arguments like these are entertained in other courts, it could pose some serious, irreparable problems for social media platforms.

The plaintiffs essentially sought to treat Facebook as the financial guarantor of all terrorist-caused harms to all victims, regardless of what role Facebook played in causing those harms. Such an unbounded financial exposure could dwarf Facebook’s market capitalization, meaning that the theories behind these lawsuits pose an existential threat to Facebook, other social media sites, and possibly the entire Internet. Thus, the judge’s well-reasoned and clear rejection of the plaintiff’s claim is a big win for Facebook and the Internet.

This decision will be appealed by both parties. There's been no decision yet on a similar suit filed in the Ninth Circuit, but the chances of these legal theories succeeding is very slim. But it's not impossible to end up with a bad ruling or, at the very least, precedent that weakens Section 230 without removing it completely. We've seen it happen before. But so far courts haven't felt the urge to hold social media platforms directly responsible for terrorists' acts of violence and it's unlikely these two complainants are going to change that.

Filed Under: intermediary liability, liability, material support for terrorism, terrorism
Companies: facebook