Ridiculous Lawsuit Looks To Hold Social Media Companies Responsible For The San Bernandino Shooting

from the blame-game,-but-with-civil-judgments! dept

This hasn't worked yet, but that's not going to keep anyone from giving it another try. Excolo Law, representing victims of the San Bernardino attacks (and others in similar lawsuits), is suing Twitter, Facebook, and Google for [sigh] "knowingly and recklessly" supporting terrorism.

The lawsuit, like others before it, claims the social media platforms aren't doing enough to prevent terrorists from using them for communication, not taking down reported posts fast enough, and otherwise making the world a more dangerous place simply by offering their services.

Section 230 is the bar litigants have to clear before holding social media platforms accountable for the actions of their users. This hasn't happened yet, despite the suits being lobbed in California federal courts where some dubious 230 decisions have been handed down.

But try they will. Repeatedly. The lawsuit claims that if these three internet giants hadn't existed, the "most feared terrorist group in the world" would not have experienced as much growth as it has. Maybe so, but if it wasn't these three companies, it would just be other communications platforms being dragged into court -- third parties several steps removed from the underlying tragedies.

The lawsuit goes so far as to allege the perpetrators wouldn't have carried out the San Bernardino shooting if Facebook, Twitter, and YouTube hadn't existed. From the lawsuit [PDF]:

Farook and Malik were radicalized by ISIS’ use of social media. This was the stated goal of ISIS. Farook and Mateen then carried out the deadly attack in San Bernardino…

But for ISIS’ postings using Defendants’ social media platforms, Farook and Malik would not have engaged in their attack on the Inland Regional Center.

OK, then.

There's not anything new is this filing, the third by Excolo. I assume the firm will keep recruiting litigants and filing doomed lawsuits until its gathered enough dismissals to reach a cost/benefit tipping point. As always, the incidents underlying the suits are undeniably tragic. But that doesn't make suing third parties for other people's posts and communications any more correct than it does when nothing more than someone's allegedly-damaged reputation is on the line.

Filed Under: intermediary liability, isis, san bernardino, section 230, social media, terrorism
Companies: facebook, google, twitter, youtube

UK Parliament Takes First Step Towards Making Google & Facebook Censor Everything

from the this-is-a-bad-idea dept

Look, let's just start with the basics: there are some bad people out there. Even if the majority of people are nice and well-meaning, there are always going to be some people who are not. And sometimes, those people are going to use the internet. Given that as a starting point, at the very least, you'd think we could deal with that calmly and rationally, and recognize that maybe we shouldn't blame the tools for the fact that some not very nice people happen to use them. Unfortunately, it appears to be asking a lot these days to expect our politicians to do this. Instead, they (and many others) rush out immediately to point the fingers of blame for the fact that these "not nice" people exist, and rather than point the finger of blame at the not nice people, they point at... the internet services they use.

The latest example of this is the UK Parliament that has released a report on "hate crime" that effectively blames internet companies and suggests they should be fined because not nice people use them. Seriously. From the report:

Here in the UK we have easily found repeated examples of social media companies failing to remove illegal content when asked to do so—including dangerous terrorist recruitment material, promotion of sexual abuse of children and incitement to racial hatred. The biggest companies have been repeatedly urged by Governments, police forces, community leaders and the public, to clean up their act, and to respond quickly and proactively to identify and remove illegal content. They have repeatedly failed to do so. That should not be accepted any longer. Social media is too important to everyone—to communities, individuals, the economy and public life—to continue with such a lax approach to dangerous content that can wreck lives. And the major social media companies are big enough, rich enough and clever enough to sort this problem out—as they have proved they can do in relation to advertising or copyright. It is shameful that they have failed to use the same ingenuity to protect public safety and abide by the law as they have to protect their own income.

Social media companies currently face almost no penalties for failing to remove illegal content. There are too many examples of social media companies being made aware of illegal material yet failing to remove it, or to do so in a timely way. We recommend that the Government consult on a system of escalating sanctions to include meaningful fines for social media companies which fail to remove illegal content within a strict timeframe.

This is the kind of thing that sounds good to people who (a) don't understand how these things actually work and (b) don't spend any time thinking through the consequences of such actions.

First off, it's easy for politicians and others to sit there and assume that "bad" content is obviously bad. The problem here is twofold: first, there is so much content showing up that spotting the "bad" stuff is not nearly as easy as people assume, and second, because there's so much content, it's often difficult to understand the context enough to recognize if something is truly "bad." People who think this stuff is obvious or easy are ignorant. They may be well-meaning, but they're ignorant.

So, for example, they say that these are cases where such content has been "reported" on the assumption that this means the companies must now "know" that the content is bad and they should remove it. The reality is much more difficult. DO they recognize how many such reports these companies receive? Do they realize that before companies start taking down content willy nilly, that they have to actually understand what's going on? Do they realize that it's not so easy to figure out what's really happening sometimes?

Let's go through the examples given: "dangerous terrorist recruitment material." Okay, seems obvious. But how do you distinguish terrorist recruitment videos from documenting terrorist atrocities? It's not as easy as you might think. Remember how a video of a European Parliament debate on anti-torture was taken down because the system or a reviewer thought it was promoting terrorism? People think this stuff is black and white, but it's not. It's all gray. And the shades of gray are very difficult to distinguish. And the shades of gray may differ greatly from one person to another.

Sexual abuse of children. Yes, clearly horrible. Clearly things need to be done. There are, already, systems for government-associated organizations and social media platforms to share hashes of photos deemed to be problematic and these are blocked. But, again, edge cases are tricky. Remember, it wasn't that long ago that Facebook got mocked for taking down the famed Napalm Girl photo? Here's a situation that seems black and white: no naked children. Seems reasonable. Except... this naked child is an iconic photo that demonstrates the horrors of war. That doesn't mean we should let all pictures of naked children online -- far from it, obviously. But the point is that it's not always so black and white, and any policy proposal that assumes it is (as the UK Parliament seems to be suggesting) has no idea what a mess it's causing.

Next on the list: "incitement to racial hatred." This would be so called "hate speech." But, as we've noted time and time again, this kind of thinking always ends up turning into authoritarian abuse. Over and over again we see governments punish people they don't like, by claiming what they're saying is "hate speech." But, you say, "incitement to racial hatred" is clearly over the line. And, sure, I agree. But be careful who gets to define both "incitement" and "racial hatred." You might not be so happy. Here in the US, there are people who (ridiculously, in my opinion) argue that groups like Black Lives Matter are a form of "incitement to racial hatred." Now, you might think that's crazy, but there are lots of people who disagree with you. And some of them are in power. Now are you happy about handing them the tools to demand that all social media sites take down their content or face fines? Or, how do you expect Google and Facebook to instantly determine if a video is a clip from a Hollywood movie, rather than "incitement to racial hatred?" There are plenty of powerful scenes in movies that none of us would consider "polite speech," but we don't think they should be taken down as "incitement to racial hatred."

Then the report notes that "the major social media companies are big enough, rich enough and clever enough to sort this problem out." First off, that's not true. As noted above, companies make mistakes about this stuff all the time. They take down stuff that should be left up. They leave up stuff that people think they should take down. You have no idea how many times each and every day these companies have to make these decisions. Sometimes they get it right. Sometimes they don't. Punishing them for a mistake in being too slow is a near guarantee that they'll be taking down a ton of legit stuff, just to avoid punishment.

Separately, who decides who's a "major social media company" that has to do this? If rules are passed saying social media companies have to block this stuff, congrats, you've just guaranteed that Facebook and Google/YouTube are the last such companies. No new entrant will be able to take on the burden/liability of censoring all content. If you try and somehow, magically, carve out "major" social media companies, how do you set those boundaries, without creating massive unintended consequences?

The report falsely claims that these companies have successfully created filters that can deal with advertising and copyright, which is laughable and, once again, ignorant. The ad filter systems on these platforms are terrible. We use Google ads for some of our ad serving, and on a near constant basis we're weeding out terrible ads, because no company is able to and awful people are getting their ads into the system all the time. And copyright? Really? If that's the case, why are the RIAA/MPAA still whining about Google daily? These things are much harder than people think, and it's quite clear that whoever prepared this report has no clue and hasn't spoken to anyone who understands this stuff.

Social media companies currently face almost no penalties for failing to remove illegal content.

What a load of hogwash. They face tremendous "penalties" in the form of public anger. Whenever these stories come out, the companies in question talk about how much more they need to do, and how many people they're hiring to help and all that. They wouldn't be doing that if there were "no penalties." The "penalties" don't need to be legal or fines. It's much more powerful when the actual users of the services make it clear what they don't like and won't stand for. Adding an additional legal threat doesn't change or help with that. It just leads to more problems.

And that's just looking at two awful paragraphs. There's much more like that. As Alec Muffett points out, the report has some really crazy ideas, like saying that the services need to block "probably illegal content" that has "similar names" to illegal content:

Despite us consistently reporting the presence of videos promoting National Action, a proscribed far-right group, examples of this material can still be found simply by searching for the name of that organisation. So too can similar videos with different names. As well as probably being illegal, we regard it as completely irresponsible and indefensible.

So, not only do the authors of this report want Google to remove any video that is reported, no questions asked (despite a long history of such systems being widely abused), it wants them to magically find all "similar" content that is "probably illegal" even with "different names." Do they have any idea what they're asking for? And immediately after that they, again, insist that this must be possible because of copyright filters. Of course, these would be the same copyright filters that tried to take down Cory Doctorow's book Homeland because it had a "similar name" to the Fox TV show "Homeland." "Similar names" is a horrific way to build a censorship system. It will not work.

What's so frustrating about this kind of nonsense is that it keeps popping up again and again, often from people with real power, in large part because they simply do not comprehend the actual result of what they're saying or the nature of the actual problem. There are not nice people doing not nice things online. We can all agree (hopefully) that we don't like these not nice people and especially don't like the not nice things they do online. But to assume that the answer to that is to blame the platforms they use for not censoring them fast enough misses the point completely. It will create tremendous collateral damage for tons of people, often including the most vulnerable, while doing absolutely nothing to deal with the not nice people and the not nice things they are doing.

Filed Under: censorship, europe, hate crime, hate speech, intermediary liability, parliament, platforms, uk
Companies: facebook, google, twitter, youtube

Dear Europe: Please Don't Kill Free Speech In The Name Of 'Privacy Protection'

from the think-about-this-carefully dept

About a year and a half ago, we wrote about how the new European "General Data Protection Regulation" (GDPR) was potentially very problematic for free speech. That is, well-meaning "data protection" folks wrote up the GDPR, but it appears they did so with little thought towards what the impact might be on free speech. So, specifcally, when they include something like a right to "erasure" for certain information, you can understand, from a privacy standpoint why people may want certain data and information to be deleted from certain databases. But bring that over to the open web, rather than private databases, and you're talking about a censorship tool around a "right to be forgotten" system.

To deal with this kind of potential problem, rather than doing the smart thing and fixing and clarifying the GDPR, Europe has left things up to each member country to try to sort things out on their own, and to explore how to set their own data protection rules in a manner that will obey the GDPR but also avoid stomping out free expression. Unfortunately, it's unclear that many of the states are taking that balancing act very seriously. The UK quietly put up a comments request with all answers due by this Wednesday (and, of course, by the time this all gets sorted out, who's to say if the UK will even still be in the EU... but...).

Daphne Keller, who studies these things over at Stanford Law School's Center for Internet and Society has both a larger paper and a shorter blog post discussing this, specifically in the context of serious concerns about how the Right To Be Forgotten (RTBF) under the GDPR will be implemented, and how it may stifle freedom of expression across Europe. Right now, of course, the RTBF applies to search results, but under the GDPR it may expand to much more, including things like Twitter and Facebook:

Applying RTBF to platforms like Facebook, Dailymotion, or Twitter would be a big deal for Internet users’ expression and information rights. RTBF in its current form under Google Spain only covers search engines, and only requires “de-listing” search results – meaning that users will not see certain webpage titles, snippets, and links when they search for a data subject by name. Regulators have said that the RTBF is reconcilable with information and expression rights precisely because information is only de-listed, and not removed from the source page. But if social media or other hosts had to honor RTBF requests, much of the information they erased would not merely be harder to find – it would be truly gone. For ephemeral expression like tweets or Facebook posts, that might mean the author’s only copy is erased. The same could happen to cloud computing users or bloggers like artist Dennis Cooper, who lost 14 years of creative output when Google abruptly terminated his Blogger account.

Expanding the list of private platforms that must accept and adjudicate RTBF requests would directly affect users’ expression and information rights. But it is hard to pinpoint quite which GDPR articles speak to this issue. Is it purely a question of who counts as a controller under the GDPR’s definitions (Art. 4)? Might it be, as I have argued in other contexts, a question about the scope of objection and erasure rights (Arts. 17 and 21)? Do national expression and information rights shape a platform’s “responsibilities, powers and capabilities” under the Google Spain ruling (para. 38)? These are difficult questions. The answers will, in a very real way, affect the expression and information rights that Member State legislatures are charged with protecting.

And what happens if (as always happens) the process is abused and perfectly legitimate content is taken down? That is... once again... not at all clear:

The Article 29 Working Party has said that search engines generally shouldn’t tell webmasters about de-listings, and the Spanish DPA recently fined Google €150,000 for doing so. The data protection logic here is understandable. When a data subject tells a controller to stop processing her data, it seems perverse for the controller to instead process it more by communicating with other people about it.

But excluding the publisher or speaker from the platforms’ behind-closed-doors legal decisions puts a very heavy thumb on the scales against her. It effectively means that one private individual (the person asserting a privacy right) can object to a platform’s RTBF decision and seek review, while the other private individual or publisher (asserting an expression right) cannot. Other procedural details of the GDPR tilt the balance further. For example, a platform can reject a RTBF request that is “manifestly unfounded,” but only if the platform itself – which likely has little knowledge about or interest in the information posted by a user – assumes the burden of proof for this decision. (Art. 12.5)

This lopsided approach may be sensible for ordinary data erasure requests, outside the RTBF context. When a data subject asks a bank or online service to cancel her account, the power imbalance between the individual and the data controller may justify giving her some procedural advantages. But RTBF requests add important new rights and interests to the equation: those of other Internet users. Procedural rules should not always favor the data subject over other private individuals.

And, of course, as we've pointed out over and over again, the more liability you put on the platform for not deleting content, the more those platforms will default to deleting all sorts of content to avoid liability. And that would mean free and open spaces on the web become locked up fast. And that should be seen as worrying for those who believe in the internet as a platform for everyone, rather than just big media companies.

Research and common sense tell us that when platforms face legal trouble for failing to remove user expression, they are likely to remove too much. Claimants consistently ask platforms to remove more information than the law requires: studies say that 38% of copyright removal requests to Google Image Search raise invalid legal claims; Google and Bing both report that over 50% of RTBF requests do as well. But as the studies show, platforms often err on the side of caution, taking down lawful or lawfully processed information. Incentives to play it safe and simply comply with RTBF requests are strong under the GDPR, which permits penalties as high as 4% of annual global turnover or €20 million. (Art. 83) National law should account for this dynamic, putting procedural checks in place to limit over-removal by private platforms. Civil society recommendations like the Manila Principles offer a menu of options for doing just this. For example, the law can penalize people (or businesses, governments, or religious organizations) if they abuse notice-and-takedown to target other people’s lawful expression.

The GDPR does not provide meaningful procedural barriers to over-removal. In many cases, it appears to strongly tilt the playing field in favor of honoring even dubious RTBF requests – like ones Google received from priests trying to hide sexual abuse scandals, or financial professionals who wanted their fraud convictions forgotten.

As various countries in Europe look to put in place regulations to abide by the GDPR it would be nice if they actually considered this stuff. I fear they may not. If you have some time in the next day or two, at least feel free to take part in the UK comment period and hope that they get it right (even if they're on their way out of the EU).

Filed Under: data protection, europe, free speech, gdpr, intermediary liability, privacy, uk

Congressperson's Sex Trafficking Bill Looks To Carve Holes In Section 230 Immunity

from the first-they-came-for-the-worst-of-the-worst... dept

Law prof Eric Goldman -- who's covered numerous internet-related cases over the years -- is sounding the alarm about a draft bill [PDF] circulating Congress which could do some very serious damage to the internet itself. The bill aims to undercut Section 230 protections in the name of preventing sex trafficking.

The draft bill is called the “No Immunity for Sex Traffickers Online Act of 2017.” It’s authored by Rep. Ann Wagner (R-Mo.). The bill would amend Section 230 in two main ways:

1) it would add a new statement to Section 230’s purpose: “to ensure vigorous enforcement against providers and users of interactive computer services of Federal and State criminal and civil law relating to sexual exploitation of children or sex trafficking of children, including through the availability of a civil remedy for victims of sex trafficking of children”

2) it would exclude the following claims from Section 230’s immunity:

– “any State criminal statute relating to sexual exploitation of children or sex trafficking of children” from the immunity

– 18 USC 1595, which has a civil remedy for sex trafficking

– “any other Federal or State law (to the extent such law does not impose criminal penalties) relating to sexual exploitation of children or sex trafficking of children”

As Goldman points out, Wagner's bill is clearly aimed at Backpage. If it ever makes its way into law, it will arrive far too late to wield it against Backpage and its owners, but it could be used to initiate prosecutions against other site owners for content posted by their users.

Maybe Rep. Wagner was just waiting for a like-minded legislator to come along and help push some bad ideas towards the president's desk. The recent arrival of former California attorney general Kamala Harris (a newly-elected Senator) should ensure lousy, internet-damaging bills aren't limited to the House. It's a chance to make earlier complaints become debilitating statutes. Goldman notes the bill not only duplicates Rep. Wagner's previous human trafficking law (which was passed), but echoes a "Let's Blame Backpage!" letter sent to Congress back in 2013.

[I]n 2013, 47 state AGs (including California’s then-AG and now-Senator Kamala Harris) sent a letter to Congress complaining that Section 230 prevented them from squashing Backpage and requesting that Congress amend Section 230 to exclude all “federal *and state* crimes.” Congress never responded to the letter–until now. Consistent with the AGs’ request, Rep. Wagner’s bill would open up Section 230 to state crimes, but only if the crimes relate “to sexual exploitation of children or sex trafficking of children”–a smaller universe than the AGs’ request to open up *all* state crimes.

The same idea -- a "narrow" exception to Section 230 immunity -- has been floated as a way to tackle the revenge porn problem. It's almost always easier to locate and serve/prosecute site owners than it is to go after those actually violating laws. The problem for most prosecutors (and plaintiffs) is they're prevented from doing so by Section 230 immunity. This is the way it should be. The target of prosecution/litigation should be the person causing the harm or breaking the law, not the person(s) easier to locate and punish.

What proposals like this do -- if they become law -- is create small fractures in Section 230 protections. These will eventually become actual holes as prosecutors, politicians, and courts carve out more and more exceptions as the activity they're trying to prevent moves to other platforms either to escape scrutiny or because site owners and service providers are unwilling to host anything that might see them being held responsible for users' content.

The strict liability rule might run into First Amendment concerns, but we won’t know that until the court challenge. As we know, if there’s not a single home for them, online prostitution ads migrate into other topics. So any classified ad or message board service–even those that are completely free–would need to prescreen most/all user postings to screen out the possibly-small percentage of those postings that violate the new law. The overall cost imposition on publishers, and associated chilling effect, attributable to the law would be huge.

The most serious problem Goldman sees -- and his reason for even bothering to discuss a draft bill -- is this is the sort of thing that could actually pass in the current political climate. The California AG who engaged in a personal vendetta against Backpage is now a US senator. The author of this bill is a Republican sitting in a Republican-controlled house. The bill targets child sex trafficking, which is of course the worst kind of sex trafficking. And who's going to stand up in the House or Senate and claim they're against preventing the trafficking of children for sex? Clearly no one wants to take that public stance, even if they know the bill would do harm to the First Amendment while having almost no effect on eliminating sex trafficking.

Then there's the internet service providers themselves. As Goldman notes, they weren't exactly rallying around Backpage as politicians and prosecutors used it for a punching bag and a useful analogue for everything that's wrong with the internet.

[I]t’s unclear that the major Internet companies will oppose the bill. They’ve frequently stayed on the sidelines during Backpage’s battles, content to let Backpage carry the water for everyone. With Backpage out of the industry, they no longer get the free ride. This draft bill will force a decision: acquiesce or fight. I don’t know what they will choose.

Small exceptions become huge problems. Mission creep, combined with most politicians' innate ability to make bad things even worse, means this proposed exception to Section 230 protections won't stay narrow and limited for long. Fortunately, the bill's a long way off from a president's signature. But the opposition to legislative ideas like this needs to remain loud and constant.

Filed Under: ann wagner, intermediary liability, kamala harris, moral panic, section 230, sex trafficking
Companies: backpage

Australian Govt.: Just Kidding On That Whole Safe Harbors Reform Thing, Guys

from the lobbying-works dept

It was just last week that we discussed the pleasant news that Australia's Prime Minister was backing the idea of reforming the country's safe harbor laws, which are far out of line with much of the world as the result of poor wording. The whole thing can be basically summarized thusly: in Australia, safe harbor protections only apply to commercial ISPs, as opposed to service providers like websites or institutions that offer internet access, because someone decided to use the term "carriage service providers" in the law as opposed to simply "service providers." Essentially everyone agrees this was done in error as opposed to intentionally, yet it's been decades and nobody has bothered fixing the law.

Until some members of the government revived an attempt to do so and got the Prime Minister's support. Doing so would have put Australian law on equal footing with the EU and American safe harbor provisions, meaning that service providers generally couldn't be scapegoated for the actions of a third party. You know, holding the actual people culpable of a crime accountable instead of the service provider.

Well, that sane approach was no match for lobbying dollars, it seems, as the Australian government is yanking the safe harbor reform section out of its copyright bill entirely.

The Australian government has dropped plans to extend safe harbours from a new piece of legislation that will amend the country’s copyright laws. The Australian government had planned to bring the country’s safe harbour rules more in line with those in the US and Europe. However, the local media and entertainment industries hit out at that proposal, pointing out that the wider safe harbour had proven controversial in America and the European Union, and that moves were afoot in the latter to limit safe harbour protection for user-upload platforms.

With all that in mind, lobbyists for the content owners argued, a rigorous review should be undertaken before any changes to Australian safe harbour rules are considered by lawmakers. Yet the safe harbour reform hadn’t been subject to a proper consultation like the other proposals in the Copyright Amendment Bill.

Because it's simple morality: you don't blame someone who didn't commit an illegal action. On top of that, safe harbor provisions in America have only been held as controversial by lawsuit-happy lawyers and entertainment companies that see a potential profit center in service providers. After all, suing individuals is both difficult and a PR nightmare. Suing faceless websites or schools? Not so much.

Now the lobbyist-puppets in the government are pitching the removal as a way to have "evidence-based hearings" on the safe harbor proposals, except it should go without saying that evidence isn't often the basis of anything that comes out of entertainment industry lobbyists to begin with. Between inflated piracy statistics, inflated impact of copyright on inflated industries, and inflated claims about dollars lost, who but someone with their hand out even looks to the entertainment industry for any kind of valid analysis on any of this?

Besides: the whole safe harbor question has arisen from a miswording in the law. It seems that low of a hurdle to reform ought not need public hearings to leap over it.

Filed Under: australia, copyright, intermediary liability, safe harbors

Australia's Prime Minister Supports Expanded Safe Harbor Protections Down Under

from the good-news dept

The history of copyright law in Australia is somewhat tortured, with the government there far too often bending the knee to entertainment industries both local and abroad. Still, while much of this history is fraught with protectionism reared intentionally, one of the more curious aspects of Australian copyright law appears to have originated as something of an accident. That aspect is that the kind of safe harbor protections that exist in America are rather limited in Australia. Specifically limited to commercial ISPs, as opposed to websites or institutions that provide internet access generally speaking. We'll get a bit more into how this came to be in a moment. We'll start instead with news that recently offered amendments to copyright law in the country that would shore up safe harbor protections more generally have received the support of Australian Prime Minister Malcom Turnbull.

To solve this problem and put Australia on a similar footing to technology companies operating in the United States, proposed amendments to the Copyright Act will see all of the above receiving enhanced safe harbor protections while bringing the country into compliance with AUSFTA.

But for now, momentum appears to be shifting in favor of the technology platforms. A report in The Australian (paywall) indicates that Prime Minister Malcolm Turnbull has given the safe harbor amendments his support. It won’t be all plain sailing from here, however.

And that rocky road to harmonizing Australian copyright law with the EU and America is being laid by the usual entertainment industry suspects, whose objections are familiar tropes. Music and entertainment groups are complaining that offering safe harbor protections to such unworthy entities as schools and libraries, along with websites like Google and Facebook, amounts to codifying piracy. That's silly for all the reasons you should already know, but which can be best stated as it being quite dumb, and immoral, to saddle a third party with the guilt of a pirate just because it's an easier and more lucrative target. Because that's all this opposition amounts to: the desire to sue a school if a student infringes copyright. Or Google. Or a museum that provides internet access. This is what the entertainment industry wants to go to bat over.

But this gets really dumb when you consider that the lack of safe harbor protections in question was the result essentially of a poor choice of words over a decade ago.

The problem in Australian arose in the implementation of AUSFTA when the term “carriage service provider” (a technical terms for telecommunications companies and ISPs) was used rather than the wider “service provider” definition in the treaty.

“This places Australia at a competitive disadvantage” says Trish Hepworth. “Australian providers of common activities - transmitting data, caching, hosting and referring users to an online location – lack the protections and certainties enjoyed by their overseas competitors. It places schools, universities and libraries in a risky position as they go about their everyday business. ”

Reformers have been trying for ten years to correct this error, but they have been stymied at every turn by entrenched industry lobbyists. But now, with the Prime Minister throwing his weight behind expanded protections, there's a road map for a change in the law. The Australian government will be holding Senate hearings to debate the amendments, and you can be sure that the entertainment industry will be well represented within them, but a PM endorsement is a big deal. Hopefully our Aussie friends will get this right.

Filed Under: australia, copyright, intermediary liability, malcolm turnbull, safe harbors, service providers

Facebook Sued In Israel For Blocking All Links To Site Critical Of Facebook & Suggesting Site Was 'Unsafe'

from the questions,-questions,-questions dept

Mizbala is an Israeli marketing/creative agency that runs a news site as well, commenting on issues related to internet marketing and advertising. The site has been quite critical of Facebook, including a few recent posts where it mocked Facebook for its aggressive/arbitrary blocking of users and content:

Over the past few days, Mizbala has written about other cases in which Facebook automatically blocked and/or erased posts. In one case, comedian Guri Alfi complained about the erasure of one of his posts, which he attributed to the fact that he credited photographer Guy Kushi. The Hebrew word “kushi” is a derogative term for blacks.

In another incident, Gili Cohen, a participant in the “Big Brother” reality show, was blocked for 30 days after posting a video clip in which he harshly criticized the fact that he and others had been blocked for using “banned words” in old posts.

This is something that we've been known to post about on quite a few occasions as well. The fact is, Facebook isn't always good with its blocking decisions. Frankly, this isn't a huge surprise, given that it has to use a combination of algorithms and low level human reviewers to cover a fairly large amount of content -- a decision the company made when it decided that it would be the arbiter of what is and what is not allowed on the site. Mistakes are going to happen, and with it comes people mocking Facebook for making bad decisions.

However, with Mizbala, something extra strange happened. Soon after posting a few of these stories mocking Facebook, suddenly Mizbala itself was blocked by Facebook. Entirely. Even worse, previous links to Mizbala disappeared and anyone posting a link to Mizbala was given a fairly scary sounding message suggesting the site was deemed "unsafe" by Facebook.

In some other cases, it told people posting Mizbala links that the links "might be spam."

Yeah, so that certainly feels pretty sketchy. The site is regularly critical of Facebook -- specifically how it blocks people arbitrarily -- and suddenly it too gets blocked by Facebook with a nasty warning that the site itself is "unsafe." Even if this was an accident, it really looks quite bad.

In response, Mizbala has sued Facebook in Israel arguing that the messages associated with the block are defamatory and a "false description" of Mizbala (which appears to be similar to the concept of "false light" in American law).

I'll admit that I'm a bit torn about this whole thing. The arbitrary/hamfisted blocking is pretty ridiculous, and it's made much worse when it comes right after Mizbala was directly criticizing Facebook for arbitrary blocking and when it then is telling people that the site is either unsafe or spam. But, at the same time, it seems like a flat out public shaming is always going to make more sense here than going legal. In the US, at least, this kind of lawsuit would almost certainly fall flat (quickly). Nearly a decade ago, we wrote about a case in which it was found that Section 230 of the CDA protected an antivirus company (Kaspersky) from calling some adware "spyware." CDA 230(c)(2) makes it quite clear that attempts by companies to filter content taken in good faith don't expose the company to liability (of course, if this case were in the US, I'd guess that Mizbala could argue that the block wasn't made "in good faith.")

Of course, the case is in Israel, not in the US, and Israel doesn't have an equivalent to Section 230 for cases like this.

Given all that, this case could be troublesome. Obviously, Facebook's actions here look sketchy, and I'm all for calling out the company for its bad filtering policies, and the really iffy "unsafe" labelling it gave to the site here. But by putting liability on a company for deciding to block certain sites opens up a pandora's box of mischief. It could enable just about any site that was blocked -- even if for legitimate reasons, to gum up the judicial system with lawsuits and would make it much more difficult for lots of internet companies (including small ones who don't have the litigation budget of Facebook) to have to defend almost any moderation decision they make. This is the kind of thing that Section 230 protects against in the US, letting companies make their own moderation decisions (while the First Amendment then lets anyone mock the companies for making bad decisions).

Filed Under: blocking, false description, false light, filters, intermediary liability, israel, links, section 230
Companies: facebook, mizbala

New Zealand Court Says Kim Dotcom Still Eligible For Extradition... But Not Over Copyright

from the wait,-what? dept

After quite some time, a New Zealand court has said that Kim Dotcom is eligible for extradition to the US -- something he's been fighting for over five years. But there's a weird twist to the story. A key part of the argument that Dotcom's lawyers have been making is that for extradition to the US, there needs to be "dual criminality" (you can hear Dotcom's lawyer, Ira Rothken, discuss this on our podcast a few months back). And, the key "crime" that Dotcom is charged with involves secondary copyright infringement (i.e., creating a platform that others use to infringe). But, that's a problem, as there's no criminal secondary copyright infringement under New Zealand law (nor US law, but that's a separate issue). So, here's the twist. The court actually agreed that there's no such thing under New Zealand law -- and said that Dotcom can't be extradited for copyright infringement. However, the court said that he can be extradited for "fraud" because there's dual criminality there.

As Dotcom's lawyers point out, that means this is no longer, as was claimed by the US, the "largest criminal copyright case" because copyright is officially no longer a part of it. But, if the copyright part is taken out... where's the "fraud"? The whole claim of "fraud" is based entirely on the fact that Megaupload users infringed on copyrights. So if that's not a crime, then, um... where's the fraud?

I know that some will argue that it doesn't really matter, and they'll insist that what Dotcom and Megaupload did was "bad" -- end of story. But we're still supposed to live under the rule of law, and you don't just get to throw people in jail because they're "bad." You have to prove they actually broke the law. But that's a big problem here, because Megaupload didn't violate copyright law. And if it didn't do that... where's the "fraud"? Dotcom's lawyers will now try to appeal this part of the ruling, extending this legal fight even further. But it's a bigger issue than that. If courts can wipe away safe harbor protections by service providers by hiding behind a "fraud" claim, there are no longer safe harbor protections:

The High Court has accepted that Parliament made a clear and deliberate decision not to criminalise this type of alleged conduct by internet service providers, 5 making them not responsible for the acts of their users. For the Court to then permit the same conduct to be categorised as a type of fraud in our view disrupts Parliament’s clear intent. The High Court decision means that Parliament’s intended protection for internet service providers is now illusory. That will be a concern for internet service providers and impact on everyone’s access to the internet.

That's dangerous for free speech, it's dangerous for innovation, and it's dangerous for basic respect for the law.

Filed Under: copyright, criminal copyright, doj, extradition, fraud, intermediary liability, kim dotcom, new zealand
Companies: megaupload

Syrian Migrant Says He's Tired Of Being The Subject Of 'Fake News,' Sues Facebook For Posts Linking Him To Terrorism

from the taking-on-the-Biggest-Blue dept

No sooner had Germany announced it was looking to start fining Facebook for the publication of "fake news" than we have a lawsuit being filed to take advantage of this brand new breed of criminal violation.

Syrian migrant Anas Modamani has announced he will sue Facebook over posts by users depicting him as a supposed participant in multiple terrorist attacks.

Modamani hired a lawyer to file an injunction against the Menlo Park-based social network alleging the company failed to remove racist posts, in violation of German hate speech laws. The legal action comes as Facebook faces mounting pressure to do something about the proliferation of fake news on the social network.

Modamani cites the country's hate speech laws, but news coverage seems to feel the disputed postings should be filed under "fake news." And it's not just the press coverage. Modamani's lawyer is using this exact phrase when issuing statements about his client's case.

Chan-jo Jun, a lawyer who in November 2016 prompted an investigation into Mark Zuckerberg and other Facebook executives following a complaint alleging that the company had failed to remove racist posts, in contravention of German laws against hate speech, has taken on the case.

"Facebook is doing a very poor job with fake news," he told the BBC.

"But it is especially doing a poor job with illegal fake news.

"Not all fake news is illegal, but where it amounts to slander, as I believe this does, then it should be taken down."

Jun and Modamani are seeking an injunction blocking posts that associate him with terrorist activity. Considering Angela Merkel herself has announced her support of Facebook-fining litigation, Modamani presents a pretty nifty nexus. One of the photos attached to bogus reports of terrorist activity is a selfie he took with the German leader in 2015.

But "fake news" this is not. This may be the product of racism and/or internet denizens who feel they're called to be vigilantes/detectives. What it definitely isn't is Facebook's fault. Modamani had reported the images to Facebook, and Facebook took them down. What he wants now is for the images -- or any variations -- to stay down forever. But that's an impossibility. Obtaining a court judgment in his favor won't make it any more possible for Facebook to prevent images portraying him as a terrorist from resurfacing.

Because images falsely tying Modamani to terrorism are still available online, he and his lawyer appear to be moving quickly to take advantage of the prevailing anti-"fake news" mood and get this case into a (hopefully) sympathetic court.

In the United States, this would have no shot. Facebook performs all sorts of moderation, but things that slip by are the responsibility of the person posting them, rather than the platform hosting them. In the rest of the world… it's not nearly that simple. And in the case of alleged defamation-meets-hate crime, it's not tough to imagine a German court deciding it's Facebook's fault that idiot users keep posting BS on its site.

Filed Under: anas modamani, fake news, germany, intermediary liability, migrants, racism, refugees
Companies: facebook

RIAA Still Pushing Its Bogus Message Of A 'Value Gap' And 'Fair Compensation'

from the can-we-review-some-history dept

The RIAA is not exactly known for being the most honest of organizations out there, but in an interview given by the organization's General Counsel, Steve Marks, the level of blatant dishonesty is taken to incredible new levels. I'm going to take just one paragraph and break down what a load of total bullshit it is, and hopefully it will demonstrate, yet again, why the RIAA should never be taken seriously in its claims. It's the final question in a short interview with the Hollywood Reporter, and the question is at the top:

What changes do you foresee in the landscape of music law over the next five years?

Issues like the “value gap” and obligations of intermediaries will continue to dominate the legal landscape. Ideally, the Byzantine legal structure today would give way to a system where creators are fairly compensated and competitors are on equal footing. Those who have an interest in music could come together to figure out solutions. While litigation can be an important tool, it often takes a long time and the results are unclear. Solutions between business and industry partners can clear a path through thorny legal issues. The combination of partnership and technology can go a long way to ensuring a healthy music ecosystem.

Let's take this bit by bit.

Issues like the "value gap"....

The "value gap" is a completely made up concept by the RIAA and friends, arguing that internet platforms aren't paying the record labels (not the artists) enough. It's based on a series of out and out lies, including the simply false claim that artists make more from vinyl record sales than from online streaming.

The "value gap" is the RIAA cherry picking misleading numbers to argue that internet platforms aren't paying them enough. Note that they don't make any effort to improve what they're doing -- they're just demanding more money from platforms... just because.

And, really, that's the same issue with the rest of that sentence:

... obligations of intermediaries will continue to dominate the legal landscape.

"Obligations of intermediaries." That's legal speak for "we want everyone else to act as our private police force, and they should automatically block infringing material or we should be able to sue them for billions of dollars." Never mind the fact that the industry can't even keep track of its own copyrights, and has been known to sue over authorized works or that the RIAA itself has a history of falsely claiming infringement on works that were actually authorized -- even in cases that resulted in the bogus takedown of a site that was sent promotional works to post. And yet it expects "intermediaries" (read: Google) to magically know which works are authorized and which are not -- and to face billions of dollars in possible judgments if it guesses wrong.

Ideally, the Byzantine legal structure today...

The reason copyright's legal structure today is so "Byzantine" is because of lobbying by the RIAA and its friends at the MPAA. Every time a new technology comes along, the RIAA flips out and demands a patchwork of add-ons to copyright law to protect its gatekeeper powers, allowing it to extract monopoly rents.

Of course, the "Byzantine legal structure" Marks is whining about here is actually the very one that the RIAA itself lobbies heavily for with the DMCA's 512 notice-and-takedown provisions. The RIAA wanted a way to censor the internet via copyright law, and the DMCA was the trick. The fact that the RIAA no longer likes the deal that it fought for is just a bad joke.

And, let's not even get into the "Byzantine" structure of RIAA label contracts designed to keep artists from actually getting paid... Or, wait, let's dig right into that following the next bit of insanity from Marks.

... give way to a system where creators are fairly compensated...

Wait. The RIAA is asking for "creators" to be "fairly compensated"? Hahahahahahaha. Oh, that's a good one. This is the same RIAA who has worked incredibly hard to screw over artists time and time again to make sure they are not fairly compensated? The same RIAA whose member labels create contracts where artists routinely note that they made $0 in royalties, because the label contracts make it so impossible to recoup the advance that when you ask for an "accounting" of how much money an album has made, the labels just make shit up to avoid paying.

These would also be the very same RIAA member labels who take the vast majority of the revenue from new platforms, leaving just a pittance for artists -- and then whine that it's the platforms not giving them a fair deal. The very same labels that make sure that artists get close to nothing of any money coming in to the label. And, yes, the very same labels who for years pretended that digital music was classified as the same as a CD sale -- with much lower royalty rates than "licensed" music, leading numerous artists to sue just to get what they were clearly owed. The very same labels that many artists have had to sue, just to get a proper accounting of what is owed.

So, I'm sorry, but what a load of bullshit for the RIAA, of all organizations, to claim that it's fighting for "fair compensation" for artists. The RIAA has a decades-long history of screwing over actual artists at basically every opportunity.

... competitors are on equal footing...

Another completely ridiculous claim. The "equal footing" that the RIAA is talking about here is forcing online platforms to all conform to one particular business model -- a totally unsustainable one where an insane percentage of revenue all flows back to the labels (not the artists) despite the fact that the labels fought these platforms and did absolutely nothing to help make them a success. The whole "equal footing" or "level playing field" is really just the RIAA demanding a particular business model and saying that any innovation in business models (even if they're better for actual artists) should not be allowed, unless the RIAA gives its okay. It's basically the "we don't want any innovation" stance.

Those who have an interest in music could come together to figure out solutions.

This is hilarious. For decades, the RIAA has been the major obstructionist party here. It was the internet industry that dragged the RIAA kicking and screaming into the 21st century while people like Marks focused on suing music fans. To now claim that he just wants to "come together to figure out solutions" is laughable. The only "solutions" the RIAA wants are ones where it does none of the work, and it gets all of the money.

While litigation can be an important tool, it often takes a long time and the results are unclear.

Translation: we sued a bunch of fans and that made everyone hate us. Also, we sued a bunch of platforms and lost badly because the law isn't actually what we want it to be.

Solutions between business and industry partners can clear a path through thorny legal issues. The combination of partnership and technology can go a long way to ensuring a healthy music ecosystem.

This is just a repeat of the opening line, basically. It's the RIAA saying that the internet industry needs to solve all of its problems, and what it means is that the recording industry doesn't want to budge an inch, doesn't want to do anything, and just wants the internet companies to give tons of money to the labels and to wave a magic wand and make piracy disappear.

Filed Under: copyright, dmca, dmca 512, fair compensation, intermediary liability, safe harbors, steve marks, value gap
Companies: riaa