Don't Repeat FOSTA's Mistakes

from the learn-how-the-internet-works dept

Some of the most fruitful conversations we can have are about nuanced, sensitive, and political topics, and no matter who or where we are, the Internet has given us the space to do that. Across the world, an unrestricted Internet connection allows us to gather in online communities to talk about everything from the mundane to the most important and controversial, and together, to confront and consider our societies' pressing problems. But a growing chorus of U.S. politicians is considering dangerous new policies that would limit our ability to have those complex conversations online.

The Chair of the U.S. House Homeland Security Committee, Bennie Thompson, is urging tech companies to prioritize the removal of “sensitive, violent content” from their online platforms. But as we were worried might happen, the Chair didn’t stop there—he’s also threatening new legislation if the companies don’t move quickly.

In a letter written shortly after the heartbreaking shooting in New Zealand, which the shooter had livestreamed on multiple platforms, Rep. Thompson told Google, Facebook, Microsoft, and Twitter that if they don’t act, “Congress must consider policies to ensure that terrorist content is not distributed on your platforms, including by studying the examples being set by other countries." Calling for more aggressive moderation policies in the face of horrifying crimes is understandable, particularly when the major online platforms have failed to address how they can be exploited by individuals who broadcast or amplify hate and violence to unsuspecting users. Some might even argue that more aggressive moderation is a lamentable but needed shift in the online landscape.

But the desire to hold platforms legally accountable for the content that users post often backfires, expanding to silence legitimate voices, especially those that have long sought to overcome marginalization. These policies reward platforms for their censorship rather than for their ability to determine bad speech from good, or for meaningfully updating their business models to address how they’re feeding into this behavior. This is not to mention how the high technical bar required to implement the policies reinforces the dominance of the major platforms, which have the resources to comply with the new regulation, while new, innovative competitors do not. And if those policies are enacted into law—as has happened in other countries—the results are magnified, as platforms move to censor normal, everyday speech to protect themselves from liability.

FOSTA Provides Clear Evidence Of How These Regulations Fail

Congress doesn’t need to look at other countries for examples of how these sorts of policies might play out. Less than a year ago, it passed FOSTA, ostensibly to fight sex trafficking. Digital rights advocates, including EFF, fought against FOSTA in Congress because they feared its passage would threaten free expression online by criminalizing large portions of online speech and targeting sex workers and their allies. Groups that work closely with sex workers and sex trafficking victims warned Congress that the bill could put both consensual sex workers and sexual trafficking victims in even more danger. Horribly, these warnings appear to have come true, as sex workers have reported being subject to violence while also being shut out of online platforms that they relied on to obtain health and safety resources, build communities, and advocate for their human rights.

FOSTA sent a wider shock wave through cyberspace, resulting in takedowns of content and censorship that many wouldn’t expect to result from such a law. Although a wide range of plaintiffs are fighting the bill in court, some of the damage is already done. Some websites made changes explicitly as a result: Craigslist, for example, shut down its entire personals section, citing the risk the law created for them. Other small, community-based platforms shut down entirely rather than deal with FOSTA’s crippling criminal and civil liability. And although we cannot be certain that online platforms such as Tumblr and Facebook’s recent policy changes were the direct result of the law, they certainly appear to be. Tumblr banned all sexual content; Facebook created a new “sexual solicitation” policy that makes discussion of consensual, adult sex taboo.

Regardless of a direct link to FOSTA, however, it’s readily apparent that digital rights advocates’ worst fears are coming true: when platforms face immense liability for hosting certain types of user speech, they are so cautious that they over-correct and ban a vast range of discussions about sex, sexuality, and other important topics, because they need to stay far clear of content that might lead to legal  liability. Given the incredible chilling effect that FOSTA has had on the Internet and the community of sex workers and their allies who relied on online platforms, Internet users need to ensure that Congress knows the damage any law aimed at shifting liability for “terrorist” content to platforms would cause.

A bill that makes platforms legally responsible for “terrorist content”—even one that seems like it would only impact a small range of speech—would force platforms to over-censor, and could affect a range of people, from activists discussing strategies and journalists discussing newsworthy events to individuals simply voicing their opinions about the real and terrible things that happen in our world. Banishing topics from the Internet stunts our ability to grow and solve issues that are real and worthy of our full attention. These types of regulations would not just limit the conversation—they would prevent us from engaging with the world's difficulties and tragedies. Just as an automated filter is not able to determine the nuanced difference between actual online sex trafficking and a discussion about sex trafficking, requiring platforms to determine whether or not a discussion of terrorist content is the same as terrorist content—or face severe liability—would inevitably lead to an over-reliance on filters that silence the wrong people, and as with FOSTA, would likely harm those who are affected by terrorist acts the most.

Online platforms have the right to set their own policies, and to remove content that violates their community standards. Facebook, for example, has made clear that it will take down even segments of the horrendous video that are shared as part of a news report, or posts in which users “actually intended to highlight and denounce the violence.” It’s also updated its policy on removing content that refers to white nationalism and white separatism. But formally criminalizing the online publication of even a narrow definition of “terrorist content” essentially forces platforms to shift the balance in one direction, resulting in them heavily policing user content or barring certain topics from being discussed at all—and potentially silencing journalists, researchers, advocates, and other important voices in the process.

Remember: without careful—and expensive—scrutiny from moderators, platforms can’t tell the difference between hyperbole and hate speech, sarcasm and serious discussion, or pointing out violence versus inciting it. As we’ve seen across the globe, users who engage in counter-speech against terrorism often find themselves on the wrong side of the rules. Facebook has deactivated the personal accounts of Palestinian journalists, Chechen independence activists, and even a journalist from the United Arab Emirates who posted a photograph of Hezbollah leader Hassan Nasrallah with a LGBTQ pride flag overlaid on it—a clear case of parody counter-speech that Facebook’s filters and content moderators failed to grasp.

Creating Liability for Violent Content Would Be Unconstitutional

Assuming members of Congress make good on their promise to impose legal liability on platforms that host “sensitive, violent content,” it would be plainly unconstitutional. The First Amendment sharply limits the government’s ability to punish or prohibit speech based on its content, especially when the regulation targets an undefined and amorphous category of “sensitive, violent content.” Put simply: there isn’t an exception to the First Amendment for that category of content, much less one for extremist or terrorist content, even though the public and members of Congress may believe such speech has little social value or that its dissemination may be harmful. As the Supreme Court has recognized, the “guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits.” Yet this is precisely what Chairman Thompson purports to do.

Moreover, although certain types of violent speech may be unprotected by the First Amendment, such as true threats and speech directly inciting imminent lawless activities, the vast majority of the speech Chairman Thompson objects to is fully protected. And even if online platforms hosted unprotected speech such as direct incitement of violent acts, the First Amendment would bar imposing liability on the platforms unless they intended to encourage the violent acts and provided specific direction to commit them.

The First Amendment also protects the public’s ability to listen to or otherwise access others’ speech, because the ability to receive that information is often the first step before exercising one’s own free speech. Because platforms will likely react to the threat of legal liability by simply not publishing any speech about terrorism—not merely speech directly inciting imminent terrorist attacks or expressing true threats, for example—this would deprive platform users of their ability to decide for themselves whether to receive speech on certain content. This runs directly counter to the First Amendment, and imposing liability on platforms for hosting “sensitive, violent content” would also violate Internet users’ First Amendment rights.  

Around the World, Laws Aimed At Curbing Extremist Speech Do More Harm Than Good

If Congress truly wants to look to other countries as an example of how policy may be enacted, it should also look at whether or not that country’s policy has been successful. By and large, requiring platforms to limit speech through similar regulations has failed much like FOSTA.

In France, an anti-terrorism law passed after the Charlie Hebdo shooting “leaves too much room for interpretation and could be used to censor a wider range of content, including news sites,” according to the Committee to Protect Journalists.  Germany’s NetzDG, which requires companies to respond to reports of illegal speech within 24 hours, has resulted in the removal of lawful speech. And when democratic countries enact such regulations, more authoritarian governments are often inspired to do the same. For example, cybercrime laws implemented throughout the Middle East and North Africa often contain anti-terrorism provisions that have enabled governments to silence their critics.

The EU’s recently proposed regulation—which would require companies to take down “terrorist content” within one hour—might sound politically popular, but would be poisonous to online speech. Along with dozens of other organizations, we’ve asked that MEPs consider the serious consequences that the passing of this regulation could have on human rights defenders and on freedom of expression. Asking companies to remove content within an hour of its being posted essentially forces them to bypass due process and implement filters that censor first and ask questions later.

If anyone should think that our government would somehow overcome the tendency to abuse these sorts of regulations, take note: Just this month, the Center for Media Justice and the ACLU sued the FBI for refusing to hand over documents related to its surveilling of “Black Identity Extremists,” a “new domestic terror threat,” that, for all intents and purposes, it seems to have made up. Government agencies have a history of defining threats without offering transparency about how they determine those definitions, giving them the ability to determine who to surveil with impunity. We should not give them the ability to decide who to censor on online platforms as well. While allowing Internet companies to self-moderate may not be a perfect solution, the government should be extremely careful considering any new regulations that would limit speech—or else it will be wading into ineffective, dangerous, and unconstitutional, territory.

Reposted from the EFF's Deeplinks blog

Filed Under: fosta, internet

Welcome To The Prude Internet: No More Sex Talk Allowed

from the bringing-back-the-cda dept

While we talk about Section 230 of the Communications Decency Act, we almost never talk about any other section of the law. And there's a good reason for that, a few years after it was put into law, every other part of the CDA was ruled unconstitutional. The original part of the CDA that is no longer law included criminalizing the knowing transmission of "obscene or indecent" messages to anyone under 18 or anything "that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs." The Supreme Court, rightly, judged that this was a clear 1st Amendment violation.

However, with last year's passing of FOSTA beginning to eat away at CDA 230, we're actually moving back to a world described in the original CDA -- where plenty of "sexual" content is being barred, in part out of a fear of getting sued under FOSTA. Take for example, the writer Violet Blue, who we've linked to many times in the past. Last week, she revealed that Amazon has now cut off her Associates' account, which she had been using to support herself for years.

Blue writes about sex. That's her beat and she does a great job writing about it, and all sorts of issues related to it (including, FWIW, writing about the impact of FOSTA on sex workers). And, because of that, basically every major internet company is now banning her:

It's not clear how much of this is directly related to FOSTA, though certainly some of it likely is. When there's risk of massive liability, the easiest move is just to ban anything that might trigger liability. And thus, we get censorship.

But it also means that the internet that we all get is a very prude one, where any discussion of sexual content is now suddenly not allowed. It is, in other words, returning us to the world of the original Communications Decency Act -- the very one the Supreme Court properly tossed out as unconstitutional, recognizing just how much important content would be barred from the internet.

And while some may argue "good riddance," that is both silly and closed-minded. Even leaving aside the question of "indecent" content, what Blue writes about is educational, not indecent or prurient. But, because it merely touches on sex, it gets banned. And that means that many people who might otherwise learn about important information cannot because it's considered too risky for the internet. The internet loses much of its usefulness when it's judged on the standards of the most prude and most uptight. And, tragically, that's where we're increasingly heading.

Filed Under: fosta, section 230

Mark Zuckerberg To Congress: Okay, Fine, Please Regulate Me And Lock In My Dominant Market Position

from the hey-wait-a-second dept

Let's get a few things out of the way: Facebook deserves much of the crap it's gotten over the past few years. Indifference to serious problems, bad management, and worse practices have put it at the receiving end of a ton of bad press.

At the same time, however, the company's near total inability to do the right things means that when it actually does try to do the right things (like increasing accountability, transparency, and due process in its content moderation practices), people freak out and attack the company. Sometimes people will automatically suspect the worst possible motives. Other times, they'll completely twist what is being proposed into something else. And sometimes their expectations just aren't reasonable. (Of course, sometimes people will be correct that Facebook is just fucking things up again.)

It makes sense that the company may be frustrated by the impossible position it finds itself in, where any solution it trots out gets the company attacked, even when it might actually be a good idea. But that does not mean it should just throw in the towel. Yet it's difficult not to read Mark Zuckerburg's new op-ed in the Washington Post (possible paywall) as an exasperated throwing up of his hands, as if to say, "fine, fuck it, no one likes what we're doing, so here, government, you take over."

Technology is a major part of our lives, and companies such as Facebook have immense responsibilities. Every day, we make decisions about what speech is harmful, what constitutes political advertising, and how to prevent sophisticated cyberattacks. These are important for keeping our community safe. But if we were starting from scratch, we wouldn’t ask companies to make these judgments alone.

I believe we need a more active role for governments and regulators. By updating the rules for the Internet, we can preserve what’s best about it — the freedom for people to express themselves and for entrepreneurs to build new things — while also protecting society from broader harms.

It might be one thing if by tossing out ideas like this, Zuckerberg is basically calling the government's bluff, and saying "if you guys think it's so easy, tell us what to do."

Lawmakers often tell me we have too much power over speech, and frankly I agree. I’ve come to believe that we shouldn’t make so many important decisions about speech on our own.

After all, it's an impossible request that the government will fail at just as Facebook does. And maybe if it did, people would understand just how unreasonable it is to expect Facebook to do any better.But rather than being an effort to help the public and regulators see the futility of so many of the pressures they keep foisting on Facebook, most of the op-ed instead seems like a serious invitation for government regulation.

From what I’ve learned, I believe we need new regulation in four areas: harmful content, election integrity, privacy and data portability.

That said, much of what else Zuckerberg lays out is... disingenuous. Back when Facebook did a huge about face and started supporting FOSTA, a number of startups told me that they fully believed that Zuckerberg and Sheryl Sandberg had decided that (1) it would be costly to comply with FOSTA but (2) that they could handle the expense. Unfortunately the same could not be said for most smaller companies.

Yet here we are again, with Facebook tempting regulation that it thinks it can cope with, regardless of its impact on others.

One idea is for third-party bodies to set standards governing the distribution of harmful content and to measure companies against those standards. Regulation could set baselines for what’s prohibited and require companies to build systems for keeping harmful content to a bare minimum.

Facebook can afford to do this. Startups? Not so much.

People around the world have called for comprehensive privacy regulation in line with the European Union’s General Data Protection Regulation, and I agree. I believe it would be good for the Internet if more countries adopted regulation such as GDPR as a common framework.

New privacy regulation in the United States and around the world should build on the protections GDPR provides. It should protect your right to choose how your information is used — while enabling companies to use information for safety purposes and to provide services. It shouldn’t require data to be stored locally, which would make it more vulnerable to unwarranted access. And it should establish a way to hold companies such as Facebook accountable by imposing sanctions when we make mistakes.

Again, GDPR has already been incredibly costly to startups -- and has had a much bigger impact on them than the giants like Facebook. Yes, it was costly for Facebook to (try to) comply with the GDPR, but it has the money to deal with such things while smaller companies do not.

Zuckerberg knows what's going on. He knows the narrative in the press and in DC has turned very much against the company. He also knows that regulation is very much coming. Furthermore, he knows that part of the narrative is that "Silicon Valley" doesn't want to be regulated. And so he's effectively... er... leaning in on the opportunity to call for regulation. Regulations that he knows Facebook can deal with (and which would somewhat call the bluff of angry Congress critters).

At the time when Facebook made its FOSTA flip-flop, some suspected it was a cynical move designed to give Facebook the dual benefit of positive press coverage for having supported it, while also purposefully ensuring that they'd made life more difficult for all of their potentially disruptive competitors. This op-ed does nothing to quell these suspicions. But even if Facebook is more foolish than disingenuous in calling for more regulation that will inevitably [hurt it too], the reality is the same: it will hurt everyone else even more, and thus essentially lock in Facebook's dominance, since no one else will be able to deal with what regulation Facebook is now calling for, at best indifferent to its effect.

Last year, after Facebook sold out the community by throwing its weight behind the odious FOSTA, we talked about how Facebook lost recess for the rest of Silicon Valley. All had to suffer because of its bad decisions. Now it's even worse, as the class terror purposefully is trying to dictate the terms of his own punishment in a way that is certain to punish everyone else too.

Filed Under: fosta, gdpr, mark zuckerberg, regulation, social media
Companies: facebook

Salesforce Sued For Sex Trafficking... Because Backpage Used Salesforce's CRM

from the oh-come-on-now dept

In the latest insane lawsuit regarding the internet and sex trafficking, a group of women who were tragic victims of sex trafficking have decided not to sue those responsible for trafficking them... but online customer relationship management (CRM) provider Salesforce.com. What? Huh? Why? You might ask? Well, apparently it's because everyone's favorite sex trafficking bogeyman, Backpage.com, used Salesforce.com for its CRM. Yup.

While most of the reports on this don't show the lawsuit, CNBC thankfully posted a copy (though it's locked up in Scribd, so we can't embed our own version, unfortunately). The lawsuit makes a bunch of leaps to argue that Salesforce is somehow magically responsible for people doing illegal things on Backpage. The levels of separation between the criminal actions and the liability here are simply ridiculous. Much of the lawsuit tries to suggest that because Salesforce is good at its job in customizing its offerings to its customers, that's proof that it's magically responsible for sex trafficking:

In public, including on Twitter, Salesforce boasted about fighting human trafficking using its data tools.

But behind closed doors, Salesforce’s data tools were actually providing the backbone of Backpage’s exponential growth.

Salesforce didn’t just provide Backpage with a customer-ready version of its data and marketing tools. Salesforce designed and implemented a heavily customized enterprise database tailored for Backpage’s operations, both locally and internationally.

With Salesforce’s guidance, Backpage was able to use Salesforce’s tools to market to new “users”—that is, pimps, johns, and traffickers—on three continents.

Backpage could also use Salesforce’s custom tools to remarket to those pimps, johns, and traffickers who had been underusing its trafficking services.

It is inconceivable that the technologies used world-round to manage customer and marketing databases would be put to the immoral and illegal purposes engineered by Backpage and Salesforce.

It should not be our tax dollars, charities, and churches that carry the burden of the catastrophic harms and losses to sex trafficking survivors. That responsibility should fall to companies like Salesforce, that have facilitated and profited from sex trafficking.

Incredibly -- and obnoxiously -- the complaint uses Salesforce's own efforts to help in the fight against sex trafficking against the company. It highlights some of Salesforce's promotional efforts, concerning the fight against sex trafficking, such as this tweet:

And uses that as proof of "knowledge" by Salesforce:

Salesforce knew the scourge of sex trafficking because it sought publicity for trying to stop it. But at the same time, this publicly traded company was, in actuality, among the vilest of rogue companies, concerned only with their bottom line.

The entire assumption underlying the lawsuit is this: that Backpage was only used for illegal sex trafficking and that using CRM can help you increase your "sales," and thus Salesforce is responsible for Backpage increasing sex trafficking. That... is quite the twisted logic there.

The lawsuit was filed in California state court, rather than in federal court, under California state laws -- so there's no direct reference to FOSTA as far as I can tell. However, FOSTA casts its looming shadow over this case. Normally, I imagine that Salesforce would make a straight CDA 230 argument here that it's not responsible for the actions of its users (in this case, Backpage). But, FOSTA potentially takes that away. I say potentially, because based on my reading of the final version of FOSTA, (which is now CDA 230(e)(5)), for a civil lawsuit, FOSTA only exempts cases brought under federal sex trafficking law, and not state laws (for criminal complaints, FOSTA exempts some state sex trafficking charges). So, as plead, I'm not sure if FOSTA even directly applies -- meaning potentially Salesforce could perhaps try to claim that it's still protected by CDA 230 and the FOSTA additions don't help the plaintiffs, but... who knows? Now that we've got this new untested law, I guess we'll find out.

On the whole, though, what a preposterously silly lawsuit. Sex trafficking is a truly horrible thing, and while the complaint filed trots out a bunch of debunked and exaggerated stats about just how big a problem sex trafficking is, the real focus should be on those actually responsible. Going after the CRM provider of a website that traffickers may have used, feels like yet another example of what we've called a Steve Dallas lawsuit after the 1986 Bloom County strip in which lawyer Steve Dallas explains that after getting beaten up by Sean Penn for trying to take a paparazzi photo, he decides not to sue any of the obvious parties, but rather go after the camera manufacturer -- because that's who has the money (click through for the full comic):

Filed Under: california, cda 230, crm, fosta, intermediary liability, no good deed, section 230, sex trafficking
Companies: backpage, salesforce

Wherein The Copia Institute, Engine, And Reddit Tell The DC Circuit That FOSTA Is Unconstitutional

from the chilling-speech-is-not-cool dept

Ever since SESTA was a gleam in the Senate’s eye, we’ve been warning about the harmful effects it stood to have on online speech. The law that was finally birthed, FOSTA, has lived up to its terrifying billing. So, last year, EFF and its partners brought a lawsuit on behalf of several plaintiffs – online speakers, platforms, or both – to challenge its constitutionality. Unfortunately, and strangely, the district court dismissed the Woodhull Freedom Foundation et al v. U.S. case for lack of standing. It reached this decision despite the chilling effects that had already been observed and thanks to a very narrow read of the law that found precision and clarity in FOSTA's language where in reality there is none. The plaintiffs then appealed, and last week I filed an amicus brief on behalf of the Copia Institute, Engine, and Reddit in support of the appeal.

The overarching point we made is that speech is chilled by fear. And FOSTA replaced the statutory protection platforms relied on to be able to confidently intermediate speech with the fear of it. Moreover, it didn't just cause platforms to have only a little bit of fear of only a little bit of legal risk: thanks to the vague and overbroad terms of the statutory language, it stoked fear of nearly unlimited scope. And not just a fear of civil liability but now also criminal liability and liability subject to the disparate statutory interpretations of every state authority.

We have often praised the statutory wisdom of Section 230 before it was modified by FOSTA. By going with an approach that was “all carrot, no stick,” Congress was able to conscript platforms into meeting the basic objectives it listed in the opening sections of the statute: get the most good content online, and the least bad. But FOSTA replaced these carrots with sticks, and left platforms, instead of incented to allow the most good speech and restrict the most bad, now afraid to do either.

As a result of this fear, platforms have become vastly less accommodating towards the speech they allow on their systems, which has led to the removal (if not outright prohibition) of plenty of good (and perfectly lawful) speech. They have also been deterred from fully policing their forums, which has led to more of the worst speech persisting online. Notably, nothing in FOSTA actually modified the stated objectives of Section 230 to get the most good and least bad expression online, yet what it did modify nevertheless made achieving either goal impossible.

And in a way that the Constitution does not allow. What we learned in Reno v. ACLU, where the Supreme Court found much of the non-Section 230 parts of Communications Decency Act unconstitutional, is that online speech is just as protected as offline speech. Congress does not get to pass laws affecting speech in ways that don’t meet the exacting standards the First Amendment requires. In particular, if speech is impacted, it can only be by a law that is narrowly tailored to the problem it is trying to solve. Yet, as fellow amici wrote, speech is indeed being affected, deliberately, and, as we've seen from the harm that has accrued, by a law poorly tailored to the problem it is ostensibly intended to solve. As we explained in our brief, FOSTA has led to this result by creating a real and palpable fear of significant liability for platforms, and thus already driven them to make choices that have harmed online speakers and their speech.

Filed Under: cda 230, fosta, free speech, intermediary liability, standing, unconstitutional
Companies: copia institute, engine, reddit

FOSTA Co-Sponsor Richard Blumenthal Tells Court FOSTA Didn't Change CDA 230 & That It Was Written To Violate 1st Amendment

from the saying-the-quiet-part-loud dept

Last week, the Wisconsin Supreme Court heard the Armslist case that we've written about a few times. This is the case where victims of a shooting are trying to sue the website Armslist that had hosted the ad for the gun that the shooter bought to use in the crime (likely legally). Most cases that have interpreted CDA 230 over the past twenty-odd years have agreed that the language of that law is clear that websites cannot be held liable for the actions of their users, but last year a Wisconsin appeals court decided otherwise. The Wisconsin Supreme Court agreed to revisit this decision, and last month we filed another amicus brief to explain the important issues at stake for the internet and free speech.

A number of other amicus briefs were filed as well -- including a stunning one on behalf of Senator Richard Blumenthal and some retired members of Congress, which first wrongly insisted that CDA 230 did not apply to the web platform being sued for actions of its users, and then went on to make some truly astonishing claims about FOSTA, a bill that Blumenthal was a key co-sponsor for.

It should be noted that Blumenthal and CDA 230 have a long history -- one that goes back to a time long before he was in the Senate. Back when he was merely a grandstanding Attorney General in Connecticut, Blumenthal regularly would threaten internet companies for the actions of their users, ignoring the fact that CDA 230 prevented Blumenthal from taking this action against them. He went after MySpace because some sexual predators used the site. He went after Facebook for the same thing. Oh, and how could we forget his years-long crusade against Craigslist. Basically, as Attorney General, every few months, Blumenthal would generate splashy headlines by grandstanding to the press about some evil thing that people had done on the internet -- and incorrectly blaming the tools and services that those had people used to do it.

So it was little surprise that when a chance came up to gut Section 230's critical protections for platforms, and by extension speech on the internet, Blumenthal became the key sponsor from the Democratic side of the Senate to push these changes forward (Senator Rob Portman was the key sponsor from the GOP).

Because it's long been apparent that Blumenthal has liked to ignore what CDA 230 did (and why), it is not too shocking that with this brief he attempted to make the Wisconsin Supreme Court ignore it too. But it is odd that he would do this by misstating how the bill he sponsored, FOSTA, changed Section 230, and would have had to change it if he wanted its protections to be curtailed, by pretending it didn't actually change it. Armslist, in its own brief, had correctly pointed out that the passing of FOSTA showed that CDA 230 provided platforms with broad immunity, and that Congress would have had to amend it if it wanted to exempt certain activities from its coverage. Yet somehow Blumenthal tries to argue that's not what FOSTA was for:

According to Armslist, “[t]hat Congress saw the need to amend the CDA to exclude protection for certain sex trafficking crimes” proves that the First Circuit’s broad reading of Section 230 was correct, because otherwise “the amendment would not have been necessary.” Respondents’ Br. 20. Armslist’s interpretation of FOSTA is astonishing, bold, and completely inaccurate.

[....]

The purpose of FOSTA was to “clarify” what was already true—“that section 230 of [the CDA] does not prohibit” suits like Backpage.com.

This last sentence is just wrong, and he should know that. He literally told reporters that the point of FOSTA was "that there's a need for stronger rules of the road when it comes to accountability in this industry." If CDA 230 wasn't already preventing the litigation he thought desirable, then there would have been no need to change it. And there certainly would have been no call for him to put out a press release praising the new "tools in our legislation" that FOSTA was intended to deliver if FOSTA did not make significant changes he thought were needed to hold platforms like Backpage liable.

The upshot is that with this brief, Blumenthal essentially admitted how unconstitutional FOSTA is. At best, if all FOSTA truly did was "clarify" how Section 230 operated, it was an unnecessary incursion on expression. But in bragging about the significant changes FOSTA brought, he also ends up confessing how they are an unconstitutional incursion on expression:

Congress did not enact FOSTA to narrow Section 230's applicability to traditional sex-trafficking actions. Traditional "sex trafficking crimes are clearly outside th[e] scope" of "speaking and publishing." FOSTA, however, created a new breed of sex-trafficking actions based on the sort of publication-related conduct that Section 230 ordinarily immunizes: (1) “facilitating a violation of” sex-trafficking law, including by “publishing information designed to facilitate sex trafficking,”

"Publishing information" is a 1st Amendment protected activity. Now it is possible that a court might determine that "publishing information designed to facilitate sex trafficking" falls into the somewhat ill-defined "speech integral to criminal conduct" exception to the 1st Amendment, but the "integral" part is a higher bar than you might think -- and speech that merely "facilitates" such activities seems unlikely to clear that hurdle (especially given that we already see FOSTA leading to the suppression of much broader speech than any that actually is involved in sex trafficking).

But, hey, I guess as long as Blumenthal is this committed to interfering with how Section 230 works, it makes sense that he'd have no problem interfering with how the First Amendment works too.

Filed Under: 1st amendment, amending, cda 230, clarifying, fosta, free speech, intermediary liability, richard blumenthal, section 230
Companies: armslist

Key Supporter Of FOSTA, Cindy McCain, Misidentifies 'Different Ethnicity' Child; Claims Credit For Stopping Sex Trafficking That Wasn't

from the see-something,-shut-up dept

In the wake of 9/11, the Metropolitan Transit Authority (MTA) in New York City hired an ad agency, Korey Kay & Partners, to come up with a "creative exercise" in dealing with the post-9/11 world. They came up with slogan "If you see something, say something" and plastered it all over subways. Incredibly, the MTA trademarked the term (despite its lack of "use in commerce") and later licensed it to DHS (insanely, the MTA has been known to threaten others for using the slogan). However, despite now sounding like common wisdom, the program has been an utter disaster that has not stopped a single terrorist, but has created massive hassles for innocent people, and law enforcement who have to deal with busybodies freaking out about "weird stuff."

Take, for example: Cindy McCain. The wife to the late Senator John McCain, recently decided she had seen something and had to say something. Specifically, as she herself claims, she was at an airport and saw a woman with a child of a "different ethnicity." And, rather than thinking "how nice" or "maybe I shouldn't be racist," she thought "I must go tell the police." Specifically,as she told an Arizona radio station:

“I came in from a trip I’d been on and I spotted—it looked odd—it was a woman of a different ethnicity than the child, this little toddler she had, and something didn’t click with me,” McCain said in the radio interview. “I went over to the police and told them what I saw, and they went over and questioned her, and, by God, she was trafficking that kid.”

By God, no she wasn't. The police did go check it out, and whatever McCain thinks happened... did not.

Phoenix police said Wednesday that while officers did respond to the Jan. 30 call, at McCain’s request, they were able to determine “there was no evidence of criminal conduct or child endangerment.”

McCain is now trying to brush away the criticism by insisting she was just seeing something and saying something:

Of course, there's more backstory here and it's kind of important. Over the last few years, McCain has been really heavily focused on playing up the exaggerated moral panic around sex trafficking. As we've discussed many times, sex trafficking is a real issue, but a very small one. The numbers around it are massively exaggerated or distorted, leading to crazy moral panics, and a desire by the police and the press to rush to talk about breaking up sex trafficking rings that don't seem to actually exist.

A more cynical person than I might point out that Cindy McCain's focus on "sex trafficking" seemed to coincide with her focus on Backpage, and a desire to extract some level of revenge from that company's owners, who also, for a time, owned the Phoenix New Times, which published a series of unflattering articles about Cindy McCain (and John McCain).

But, even leaving that aside, in the run up to the debate over FOSTA, multiple people told me that more sane and reasonable versions of the bill were well positioned to move forward until Cindy McCain got involved. Prior to that, there had been real, serious discussions, understanding the problems with the FOSTA/SESTA approach, and an attempt to create a more reasonable policy to deal with (what little) sex trafficking that actually happens online. However, then Cindy McCain "got involved" and basically everyone was told that the awful approach found in FOSTA was what would be in the law.

Of course, since then, we've highlighted how FOSTA has failed miserably. Just as many of us had predicted, it has resulted in widespread censorship, many closed services, an increase in online sex ads, and more womens' lives at risk.

And Cindy McCain "seeing something" and "saying something" and then taking credit for stopping trafficking, when she was really just hassling a diverse family. Maybe we should stop listening to Cindy McCain on this particular topic.

Filed Under: cindy mccain, fosta, moral panic, see something say something, sex trafficking

New Study Says The Removal Of Craigslist Erotic Services Pages May Be Linked To An Increase In Murdered Females

from the for-the-good-of-the-many-or-whatever? dept

Under the guise of targeting sex traffickers, FOSTA has both done damage to Section 230 protections and sex workers' literal lives. The law has yet to result in any credible, sustained damage to human trafficking, but that hasn't stopped the bill's supporters from trotting out debunked numbers anytime they need a soundbite.

There will likely be no studies performed by the government to determine FOSTA's actual impact on sex trafficking, but plenty of academics are offering evidence that pushing sex work further underground is endangering the lives of sex workers. This is just the icing on the stupid, life-threatening cake as multiple law enforcement agencies -- including the DOJ itself -- pointed out passing FOSTA would make it more difficult to hunt down traffickers.

A study released in 2017 showed the introduction of erotic services section on Craiglist tracked with a 17% drop in female homicides across many major cities. Craigslist spent a few years being publicly vilified by public officials -- mainly states attorneys general -- before dumping its erotic services section (ERS). This didn't stop sex work or trafficking, but it did shift the focus away from Craiglist as everyone affected found other services to use.

A newly-released study [PDF] (via Sophie Cull) shows there's been a corresponding increase in female homicides since the point Craigslist dumped ERS. Online services -- enabled by Section 230 -- helped sex workers stay safe by reducing or eliminating a few of the more dangerous variables.

In the context of prostitution, online clearinghouses have the potential to improve safety by redirecting exchange through the clearinghouse and replacing more risky outdoor face-to-face transactions and/or other intermediaries (e.g., pimps) with indoor, direct transactions (Bass, 2015a,b). Matching online through the clearinghouse enables both sides of the market to discern the quality of the match ex ante, through such activities as informal screening, circulated black and white lists, and online reviews (Cunningham and Kendall, 2011b; Grant, 2009). This may provide the ability for sex workers to identify and screen out violent clients, law enforcement, and scammers.

The wholly expected happens when you take these safeguards away by eliminating online services, like Craigslist did in 2010.

[W]e find evidence that ERS significantly reduced female homicide rates by as much as 10-17 percent. We do not find evidence that this was a more general reduction in homicide, as ERS is unrelated to male murder, females killed by an intimate partner, or manslaughters. This strengthens our assessment that ERS-driven changes in sex markets were the primary driver of the reduction in female murders.

The study pulls from a number of data sets (including the FBI's annual crime reports), but notes there are still some limitations that prevent this from being an exact determination. For one, most homicide reports don't note whether the person killed was a sex worker. For another, the data lags because homicide reports date from the time the body was found, rather than the time the person was actually killed. From this underreported and laggy data, some inferences can be drawn, even if it's impossible to say for certain what percentage of female homicides involved sex workers. If anything, the buggy data may point to an even greater reduction in violence against sex workers via the introduction of online marketplaces.

Are these magnitudes plausible? It is difficult to answer this question given that the true incidence of prostitution homicides is unknown. Most datasets do not record whether a female victim of a homicide was a sex worker, and those that do suffer from severe underascertainment biases built into the data collection methods. To our knowledge there is only one study that has attempted to estimate the incidence of prostitution homicide as a share of female homicides (Brewer et al., 2006). The authors concluded that 2.7 percent of all female homicides are prostitution deaths by clients. But this study has significant limitations. It is based on select data only from Chicago, St. Louis, Washington state, North Carolina, the SHR, 33 urban counties for one cross-section, and Colorado Springs. The issue of underascertainment bias would conceivably hold, and maybe moreso, for this select sample. Thus we interpret their estimates to be, at best, a lower bound. Our estimate of a 10 percent reduction in female homicides does suggest, though, that ERS created an overwhelmingly safe environment for female sex workers — perhaps the safest in history.

This is not to suggest government officials and lawmakers pushing laws like FOSTA don't care about people's lives. But I'm not sure what counterargument they can provide for legislation that not only results in increased harm to (mostly) women, but also undercuts the immunity that has allowed the internet to thrive. I guess the old adage is being spun to read "It's better for dozens of sex workers to die than for third-party service providers to go free."

Filed Under: ads, fosta, homicides, murder, sex workers
Companies: backpage, craigslist

NY Times Columnist Nick Kristof Led The Charge To Get Facebook To Censor Content, Now Whining That Facebook Censors His Content

from the karma-nick,-karma dept

We've talked in the past about NY Times columnist Nick Kristof, who is a bit infamous for having something of a savior complex in his views. He is especially big on moral panics around sex trafficking, and was one of the most vocal proponents of FOSTA, despite not understanding what the law would do at all (spoiler alert: just as we predicted, and as Kristof insisted would not happen -- FOSTA has put more women at risk). When pushing for FOSTA, Kristof wrote the following:

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

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

As we noted at the time, this was an astoundingly ignorant thing to say, but of course now that Kristof helped get the law passed and put many more lives at risk, the "meh, no big deal if there are some more lawsuits or more censorship" attitude seems to be coming back to bite him.

You see, last week, Kristof weighed in on US policy in Yemen. The core of his argument was to discuss the horrific situation of Abrar Ibrahim, a 12-year-old girl who is starving in Yemen, and weighs just 28 pounds. There's a giant photo of the emaciated Ibrahim atop the article, wearing just a diaper. It packs an emotional punch, just as intended.

But, it turns out that Facebook is blocking that photo of Ibrahim, claiming it is "nudity and sexual content." And, boy, is Kristof mad about it:

Hey, Nick, you were the one who insisted that Facebook and others in Silicon Valley needed to ban "sexual content" or face criminal liability. You were the one who insisted that any collateral damage would be minor. You were the one who said there was no slippery slope.

Yet, here is a perfect example of why clueless saviors like Kristof always make things worse, freaking out about something they don't understand, prescribing the exact wrong solution. Moderating billions of pieces of content leads to lots of mistakes. The only way you can do it is to set rules. Thanks to laws like FOSTA -- again, passed at Kristof's direct urging -- Facebook has rules about nudity that include no female nudity/nipples. This rule made a lot of news two years ago when Facebook banned an iconic photo from the Vietnam War showing a young, naked, girl fleeing a napalm attack. Facebook eventually created a "newsworthy" exception to the rule, but that depends on the thousands of "content moderators" viewing this content knowing that this particular photo is newsworthy.

And, thanks to FOSTA, the cost of making a mistake is ridiculously high (possible criminal penalties), and thus, the only sane thing for a company like Facebook to do is to take that content down and block it. That's exactly what Nick Kristof wanted. But now he's whining because the collateral damage he shrugged off a year ago is himself. Yeah, maybe next time Nick should think about that before shrugging off what every single internet expert tried to explain to him at the time.

But hey, Nick, as someone once said, maybe the law you pushed for leads to an occasional frivolous takedown of important content about the impact of US policy on an entire population, but "life requires some balancing." Oh well.

Filed Under: censorship, content moderation, fosta, nick kristof
Companies: facebook

After Getting FOSTA Turned Into Law, Facebook Tells Its Users To Stop Using Naughty Words

from the the-morality-police dept

Well, well. As we've covered for a while now, FOSTA became law almost entirely because Facebook did an about-face on its position on the law -- which only recently was revealed to have happened because COO Sheryl Sandberg decided it was important to appease Congress on something, even against the arguments of Facebook's own policy team. As we pointed out at the time, this was Facebook basically selling out the internet, and we wondered if Facebook would then help clean up the collateral damage it causes?

The early indications are that, not only will it not help clean up the mess it caused, it's leaning in on this new puritanical internet that it wants to create. We've already noted that Facebook has been sued under FOSTA by someone arguing that it has helped facilitate sex trafficking. And now, just days after Tumblr's weird pivot away from sex, Facebook has put up a bunch of new guidelines in its "community standards" document, under the head of "sexual solicitation" that ban a wide variety of things from naughty words to expressing a sexual preference.

Among the banned:

• Vague suggestive statements, such as “looking for a good time tonight”
• Sexualized slang
• Using sexual hints such as mentioning sexual roles, sex positions, fetish scenarios, sexual preference/sexual partner preference, state of arousal, act of sexual intercourse or activity (sexual penetration or self-pleasuring), commonly sexualized areas of the body such as the breasts, groin, or buttocks, state of hygiene of genitalia or buttocks
• Content (hand drawn, digital, or real-world art) that may depict explicit sexual activity or suggestively posed person(s).
Got that. Expressing sexual partner preference may now be deemed as "sexual solicitation" and thus not allowed on Facebook, as, you know, it might violate FOSTA. A law that Facebook actively fought for under Sheryl Sandberg's direction.

Obviously, this is Facebook's platform and it can make whatever stupid rules it wants, but it's not difficult to see how this is likely to impact all kinds of perfectly acceptable content on its site. It also seems quite hypocritical, given that the early versions of Facebook were... very much about helping college students hook up with one another.

We warned that FOSTA would lead to widespread censorship online, and that seems to be exactly what's happening. And this should be especially troubling for sex positive people, or people who have, historically, used the internet and Facebook to discover like-minded groups, or to better understand themselves and their own preferences. We did warn, very early on, that one of the groups that was most vocal in lobbying for FOSTA was going off script and admitting that -- contrary to the public arguments made by politicians supporting the bill, that it was about stopping child sex trafficking -- that the bill was really designed to end online pornography. It seems to be taking some steps towards that goal.

Of course, as we noted earlier this week, the bill also failed to decrease sex trafficking or even sexual ads online. It's just made it harder for police to actually track down and find traffickers.

Now, some might argue that this is fine. That the "mainstream properties" like Facebook and Tumblr should get rid of all this stuff, and let it live in the dark corners of the internet. But, considering how broad these rules are, and the kind of content we're already seeing banned from Tumblr, what we're ending up with on the "mainstream" internet is losing what has always made the internet special -- that you could explore all kinds of topics, meet all kinds of people and learn about all different ideas. In the two and a half decades that the internet has been "mainstream," there has always been an effort by some to falsely describe it as the "wild west" that needed "taming." This has always been ridiculous. What they wanted was an internet controlled by gatekeepers -- turning a communications medium with anything you want -- into a broadcast medium, where anything can be sold.

Unfortunately, it looks like those forces are finally winning.

Filed Under: censorship, cleaned up internet, fosta, naughty words, sexual orientation
Companies: facebook