Top EU Court's Advocate General Says German Link Tax Should Not Be Applied -- But On A Technicality

from the nice,-but-it-won't-stop-article-11 dept

As numerous Techdirt posts have explained, there are two really problematic areas with the EU's proposed copyright directive. Article 13, which will require pretty much every major online site to filter uploaded content, and Article 11, the so-called "link tax", more formally known as an "ancillary copyright". It's yet another example of the copyright ratchet -- the fact that laws governing copyright only ever get stronger, in favor of the industry, never in the other direction, in favor of the public. We know for sure that Article 11 will be a disaster because it's already been tried twice -- in Germany and Spain -- and failed both times.

Despite that fact, the German and Spanish laws are still on the law books in their respective countries. VG Media, the German collective management organization handling copyright on behalf of press publishers and others lost no time in bringing a case against Google. It alleged that the US Internet company had used text excerpts, images and videos from press and media material produced by VG Media's members without paying a fee.

Alongside the issue of whether Google did indeed infringe on the new law, there is another consideration arising out of some fairly obscure EU legislation. If the new German ancillary copyright law is "a technical regulation specifically aimed at a particular information society service", then it would require prior notification to the European Commission in order to be applicable. The German court considering VG Media's case asked the Court of Justice of the European Union, (CJEU), the EU's top court, to decide whether or not the link tax law is indeed a "technical regulation" of that kind. As is usual for CJEU cases, one of the court's Advocates General has offered a preliminary opinion before the main ruling is handed down (pdf). It concludes:

the Court should rule that national provisions such as those at issue, which prohibit only commercial operators of search engines and commercial service providers which edit content, but not other users, including commercial users, from making press products or parts thereof (excluding individual words and very short text excerpts) available to the public constitute rules specifically aimed at information society services. Further, national provisions such as those at issue constitute a technical regulation, subject to the notification obligation under that Directive.

It follows therefore, that in the absence of notification of these national provisions to the [European] Commission, these new German copyright rules cannot be applied by the German courts.

Although that sounds great, there are two caveats. One is that the CJEU is not obliged to follow the Advocate General's reasoning, although it often does. This means that it is quite likely that the top EU court will rule that Germany's link tax cannot be applied, and thus that Google has not infringed on any snippets produced by VG Media's members. The more important caveat is that even if the CJEU does take that view, it won't affect Article 11, which is EU, not national, legislation, and not finalized yet. So we are still facing the dire prospect of an EU-wide ancillary copyright that not only won't work, but also is something that many publishers don't even want.

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Filed Under: ancillary copyright, article 11, cjeu, eu, eu court of justice, germany, link tax
Companies: google

Some EU Nations Still Haven't Implemented The 2013 Marrakesh Treaty For The Blind

from the copyright-trumps-compassion dept

The annals of copyright are littered with acts of extraordinary stupidity and selfishness on the part of the publishers, recording industry and film studios. But few can match the refusal by the publishing industry to make it easier for the blind to gain access to reading material that would otherwise be blocked by copyright laws. Indeed, the fact that it took so long for what came to be known as the Marrakesh Treaty to be adopted is a shameful testimony to the publishing industry's belief that copyright maximalism is more important than the rights of the visually impaired. As James Love, Director of Knowledge Ecology International (KEI), wrote in 2013, when the treaty was finally adopted:

It difficult to comprehend why this treaty generated so much opposition from publishers and patent holders, and why it took five years to achieve this result. As we celebrate and savor this moment, we should thank all of those who resisted the constant calls to lower expectations and accept an outcome far less important than what was achieved today.

Even once the treaty was agreed, the publishing industry continued to fight against making it easier for the visually impaired to enjoy better access to books. In 2016, Techdirt reported that the Association of American Publishers was still lobbying to water down the US ratification package. Fortunately, as an international treaty, the Marrakesh Treaty came into force around the world anyway, despite the US foot-dragging.

Thanks to heavy lobbying by the region's publishers, the EU has been just as bad. It only formally ratified the Marrakesh Treaty in October of this year. As an article on the IPKat blog explains, the EU has the authority to sign and ratify treaties on behalf of the EU Member States, but it then requires the treaty to be implemented in national law:

In this case, the EU asked that national legislators reform their domestic copyright law by transposing the 2017/1564 Directive of 13 September 2017. The Directive requires that all necessary national measures be implemented by 12 October 2018. Not all member states complied by this deadline, whereby the EU Commission introduced infringement procedures against them for non-compliance. The list of the non-compliant countries is as follows:

Belgium, Cyprus, Czech Republic, Germany, Estonia, Greece, Finland, France, Italy, Lithuania, Luxembourg, Latvia, Poland, Portugal, Romania, Slovenia, UK

The IPKat post points out that some of the countries listed there, such as the UK and France, have in fact introduced exceptions to copyright to enable the making of accessible copies to the visually impaired. It's still a bit of mystery why they are on the list:

At the moment, the Commission has not published details regarding the claimed non-compliance by the countries listed. We cannot assume that the non-compliance proceedings were launched because the countries failed to introduce the exceptions in full, because countries can also be sanctioned if the scope of the exception implemented is too broad, so much so that it is disproportionately harmful to the interest of rightsholders. So we will have to wait and see what part of the implementation was deemed not up to scratch by the Commission.

As that indicates, it's possible that some of the countries mentioned are being criticized for non-compliance because they were too generous to the visually impaired. If it turns out that industry lobbyists are behind this, it would be yet another astonishing demonstration of selfishness from publishers whose behavior in connection with the Marrakesh Treaty has been nothing short of disgusting.

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Filed Under: belgium, blind, copyright, eu, finland, france, germany, greece, italy, marrakesh treaty, poland, publishers, uk

EU Court Of Justice Advocate General: No, Of Course You Can't Copyright Military Reports

from the don't-be-silly dept

Last year we mentioned an interesting (or crazy, depending on your point of view) case that was being sent to the EU Court of Justice (CJEU), on a German case, exploring whether or not a German newspaper had infringed on the government's copyrights in publishing leaked military reports about German operations in Afghanistan (which people are calling the "Afghanistan Papers"). And, yes, as we've discussed before, while US copyright law is quite explicit that works created by our federal government cannot be subject to copyright law, many other countries do have a terrible and highly questionable concept of "crown copyright." In most cases -- including the one at the heart of this case -- such laws are used to stifle the press and freedom of speech. Here it's quite obvious that the case is being brought not because of the copyright incentives in these military reports, but in an attempt to stifle the leaks and intimidate the media from publishing such things.

Either way, the CJEU's Advocate General has weighed in and is now saying that there can be no copyright interest in such a document:

The Advocate General doubts that such reports can be classified as works eligible for copyright protection. He notes in particular that these are purely informative documents, drafted in absolutely neutral and standardised terms, providing an accurate report of events or stating that no events of interest have occurred. Such ‘raw’ information, that is to say, information presented in an unaltered state, is excluded from copyright, which protects only the manner in which ideas have been articulated in a work. Ideas (including raw information) themselves can therefore be freely reproduced and shared.

The Advocate General further states that the actual questions submitted to the CJEU are premature, because German courts should actually first go through the process of determining whether these reports are subject to copyright, even if he doubts it could be.

The Advocate General goes even further in noting that even if there was a copyright interest in the reports, using copyright in this manner would stifle freedom of expression:

...the Advocate General examines further the question whether a Member State can rely on its copyright over documents such as those at issue in order to curtail freedom of expression. In his opinion, the answer to that question should be in the negative.

He points out that the protection of the confidentiality of certain information for the purpose of safeguarding national security is a legitimate ground for restricting freedom of expression.

However, the main proceedings are not concerned with the protection of the documents at issue as confidential information, but as the subject matter of copyright protection.

Although the State is entitled to benefit from the civil right of ownership, such as the right to intellectual property, it cannot rely on the fundamental right to property as a means of restricting another fundamental right such as freedom of expression. The State is not a beneficiary of fundamental rights, but is rather under an obligation to safeguard fundamental rights.

Furthermore, it does not appear necessary to protect military reports by way of copyright.

Of course, this is just the Advocate General making his arguments for the CJEU judges, and they don't have to follow his recommendations. Hopefully, this is one of the times that they actually do listen.

Filed Under: afghanistan papers, cjeu, copyright, germany, leaks, military reports

Dubious Studies And Easy Headlines: No, A New Report Does Not Clearly Show Facebook Leads To Hate Crimes

from the it-ain't-that-simple dept

You may have seen a big story from the NY Times making the rounds this week, entitled Facebook Fueled Anti-Refugee Attacks in Germany, New Research Suggests. For fairly obvious reasons, lots of people are interested in this story. There's plenty of concern lately about how social media is impacting our lives, and clear evidence of it leading to attacks on refugees would certainly be useful. The NY Times, in ways that the NY Times does best, is somewhat breathless in propping up the claims in the report.

One thing stuck out. Towns where Facebook use was higher than average, like Altena, reliably experienced more attacks on refugees. That held true in virtually any sort of community — big city or small town; affluent or struggling; liberal haven or far-right stronghold — suggesting that the link applies universally.

Their reams of data converged on a breathtaking statistic: Wherever per-person Facebook use rose to one standard deviation above the national average, attacks on refugees increased by about 50 percent.

Nationwide, the researchers estimated in an interview, this effect drove one-tenth of all anti-refugee violence.

The uptick in violence did not correlate with general web use or other related factors; this was not about the internet as an open platform for mobilization or communication. It was particular to Facebook.

Those are some fairly bold claims, and certainly worth exploring. However, it's not exactly clear that the paper actually can support such claims. You can download a copy of the 75 page paper yourself, entitled Fanning the Flames of Hate: Social Media and Hate Crime by two PhD students, Karsten Müller and Carlo Schwarz, both from the University of Warwick. For what it's worth, people have pointed out that this paper has not yet been peer reviewed, and an earlier version of this paper got some less breathless press coverage a few months ago. But, the NY Times is the NY Times.

The paper definitely presents some interesting data, and it should be applauded that researchers are exploring these issues -- though separating out the actual causal variables seems like a difficult task. The researchers do appear to have fairly thorough data on anti-refugee attacks throughout Germany. The Facebook data, however, seems a lot less solid. A few people have been breaking down the problems with the study online, including Jonas Kaiser, Dean Eckles and Hal Hodson, who all convincingly argue that the NY Times is overplaying what the study actually shows.

Before I dig in a bit, I should note that part of the problem here is that the necessary Facebook data to do this kind of study is hard to come by. Earlier this year, Facebook announced that it would be giving some academics access to data in order to do just this kind of research (though more focused on election impact, but this should be similar). And, it would be damn helpful if Facebook were willing to give out the kind of data needed in order to actually do the kind of study that was presented in this paper.

But, so far, it has not. And that meant these two students had to try to create proxies. And... there are some questions about how they did that. To be fair, the researchers do try a variety of methods and use a variety of tools to see if they can tease out problems with their data or alternative variables that may be driving the results -- and thus the research is not just cherry picking data points. However, it does rely on a some fundamental assumptions, and those assumptions may not be valid. Specifically, in an attempt to measure "anti-refugee hate speech," they focus on one particular page: that of the relatively new, extreme anti-refugee political party Alternative for Germany, referred to as AfD.

We create a measure for the salience of anti-refugee hate speech on social media based on the Facebook page of the "Alternative für Deutschland" (Alternative for Germany, AfD hereafter), a relatively new right-wing party that became the third-strongest faction in the German parliament following the 2017 federal election. The AfD has positioned itself as an anti-refugee and anti-immigration party; with more than 300,000 likes, it also has more followers than any other German party on Facebook (see Appendix A for a history of the AfD). This widespread reach makes the AfD's Facebook page uniquely suited to measure anti-refugee sentiment on social media.

[....]

We measure the exposure of a municipality to Germany-wide anti-refugee sentiment using the share of the population that is active on the AfD Facebook page. Using this proxy for social media usage, we found that anti-refugee hate crimes disproportionally increase in areas with higher Facebook usage during periods of high anti-refugee salience. This effect is especially pronounced for violent incidents against refugees, such as arson and assault. Taken at face value, this suggests a role for social media in the transmission of online hate speech into violent crimes.

And then there's... this. Rather than measure overall Facebook usage in Germany (again, here's where Facebook could be of assistance), the researchers measured... Facebook likes of the "Nutella Germany" page (for what it's worth, Kaiser claims there is no Nutella Germany page). Why Nutella? Your guess is as good as mine. The researchers sort of brush past why that's the correct metric:

We further probe the social media channel in additional tests. We show that our results also hold for measures of general Facebook usage that are independent of support for the AfD. In particular, we create proxies for municipality-level Facebook usage by drawing on the number of users on the "Nutella Germany" page. With over 32 million likes, Nutella has one of the most popular Facebook pages in Germany and therefore provides a measure of general Facebook media use at the municipality level. We also use the Nutella data to create a dummy for municipalities with many Nutella users within a county. This measure is orthogonal to a plethora of observable characteristics, most importantly general internet usage, voting patterns, education, \pull-factors" such as immigration and religious composition, and proxies of xenophobic attitudes. We show that municipalities with many Nutella users per capita also experience more anti-refugee incidents in times of high refugee salience on the AfD page { unless access to social media is disrupted by internet or Facebook outages.

There's a lot of jargon in there, but one key point to pull out: the research shows that cities with more Nutella likers per capita experience more anti-refugee incidents. Right. So forget that they used AfD's website as a proxy, and recognize that their study might also suggest that eating Nutella leads to anti-refugee violence and... it might call into question some of the usefulness of the study.

There are some other concerns as well. MIT professor and statistician Dean Eckles notes a huge red flag: all of the "robustness" checks in the paper support their thesis. He notes that a good research paper should include robustness tests that push the analysis past the breaking point to see where their theory breaks down. But that does not happen with this paper:

A separate issue is that the eye-opening stat that the NY Times provides is that line "wherever per-person Facebook use rose to one standard deviation above the national average, attacks on refugees increased by about 50 percent." However, a number of people are suggesting that this number is not correct and presented misleadingly. First, apparently while an earlier version of the paper had 50%, the latest version revised that down to 35%. That's a pretty big difference -- and one that the NY Times should correct. Second, the fact that the paper would shift so dramatically on that number between revisions also raises some red flags. Finally, as science writer Ferris Jabr points out in researching this number, there are a lot of assumptions built into this result, that are not necessarily well supported.

In short, there are a lot of concerns with the conclusions of the paper, and as there are huge questions about the assumptions used to make this point, as well as the potential quality of the overall paper, it seems absolutely crazy for the NY Times to run a big article suggesting that these results are solid, and without raising any of the concerns.

That's not to say that a more thorough study wouldn't find the same thing. It might. And, again, this is the kind of thing where it would be super helpful if Facebook were willing to release the necessary data, so no one would have to fiddle around with German Nutella fans. But, at the very least, we shouldn't be going around making policy based on a draft paper that hasn't carefully been vetted. And, yet, there are already some reports claiming that the German government is discussing this study, almost certainly based on the NY Times reporting, rather than a critical analysis of the study itself.

There are huge accusations in this study, and the NY Times has already stretched them much further than they probably should have been stretched -- and without presenting much of the context or concerns about the assumptions. Before governments go rushing off to try to "do something" about this, perhaps we should take a step back and look for a bit more thorough and tested research.

Filed Under: germany, hate crimes, nutella, research, social media, statistics, studies, violence

Video Games In Germany Can Now Maybe Kinda Sometimes Have Swastikas

from the winning-is-weird dept

As you likely know, Germany has some very restrictive laws surrounding how and when Nazi iconography can appear in the country. This has resulted in a heavily-policed artistic community, particularly when it comes to video games, which has produced some fairly funny happenings about games accidentally going to Germany chock full of Nazi stuff and other funny happenings in which the game makers make a show of doing as little as possible to get around the law. In the realm of other media, such as movies, the German government has put in place a review process to make sure that the use of Nazi symbols furthers the artistic or historical accuracy of the entertainment. Video games have not had such a review system. And, look, on some level this sort of attempt by Germany to restrict the use of these hateful symbols is understandable. The kind of global embarrassment that comes with committing the worst genocide in history is the sort of thing that leaves a mark. But we've also pointed out that these German laws aren't so much stamping out fascist thought as they are putting the government's collective head in the sand as some kind of grand virtue signal to the planet.

Which is why it's at least a tepid step forward that Germany has revised its position and will now allow Nazi iconography in some video games, some of the time, on a case by case basis.

The government has moved from a blanket ban on swastikas and Hitler moustaches to a case-by-case basis, which will be administered by the USK, Germany’s ratings board.

The official release with the news gives the specifics:

When games that depict symbols of unconstitutional organisations are submitted to the USK for an age rating, the USK committees can now assess them on a case-by-case basis to decide whether the ‘social adequacy clause’ (Sozialadäquanzklausel, as laid out in section 86, subsection (3) of the German Criminal Code) applies. In this context, ‘social adequacy’ means that symbols of unconstitutional organisations can be used in games in individual cases, as long as those symbols serve an artistic or scientific purpose, or depict current or historical events.

Again, the big shift here is actually one of cultural importance, which is the German government will now consider video games as an artistic form, which they undoubtedly are. Movies and television have had a similar review process in place for years, but games were left out. And, as the gaming art form continues to gain ground as the preferred entertainment medium, it was impossible for the German government to ignore this forever. So, while it seems odd to declare a victory in which more swastikas will be seen by the German public, this is much more to do with an acknowledgement of culture than cheering on the Third Reich.

Felix Falk, Managing Director of the German Games Industry Association, says:

This new decision is an important step for games in Germany. We have long campaigned for games to finally be permitted to play an equal role in social discourse, without exception. Computer and video games have been recognised as a cultural medium for many years now, and this latest decision consistently cements that recognition in terms of the use of unconstitutional symbols as well.

It remains to be seen whether or not older games like Wolfenstein will resubmit the original forms of its games for inclusion in all of this, but at least the German government will no longer act as though it can pretend that Nazis were never a thing.

Filed Under: free speech, germany, historical accuracy, history, swastika, video games

Court Says German Intelligence Agency Can Continued To Deploy Its Dragnet On World's Largest Internet Hub

from the court:-dump-pipes-shouldn't-worry-about-end-users dept

The post-Snowden effects on Germany's surveillance architecture have been muted. Oversight in the US is a joke, but it's marginally better than what's being offered in other countries. You'd think a country that survived almost-consecutive crushing surveillance states would be a bit more cautious about deploying dragnets. Not so. All evidence points to German surveillance programs flourishing under the lack of effective oversight, limited only by technical prowess rather than concerns for those swept up by them.

Internal investigations prompted by revelations seemed like a step forward, but the government gave German surveillance programs a thumbs up three years later. The information revealed by Snowden and other leakers did give residents and advocates enough ammunition for legal battles, but the German courts haven't really given them anything in return.

David Meyer of ZDNet reports a court has handed a win to Germany's Federal Intelligence Service (BND) in a lawsuit filed by Frankfort's De-Cix, the largest internet hub in the world. The BND has tapped this for years, sweeping up massive amounts of data and communications, and frequently passing this on to surveillance partners around the world. De-Cix was compliant until 2016, when it decided to sue BND for violating German law.

Until a revision to German law last year, the Federal Intelligence Service, Bundesnachrichtendienst or BND, could only inspect up to 20 percent of the traffic flowing through the hub.

That traffic amounts to over 5TB per second of information coming from and going to places all over the world. The 'G10 law' also says the agency can only inspect international communications.

However, De-Cix's 2016 complaint said the BND was scooping up the lot, without any targeting. It also said the agency was illegally monitoring internal German communications as part of those activities, as its filters for emails involving a .de address did not work properly.

Unfortunately, the allegations of illegal spying won't be examined. The court has decided De-Cix cannot bring this lawsuit, which is nominally on behalf of those being illegally spied on (end users). The court says De-Cix just routes traffic, and as such, cannot allege harm.

De-Cix isn't happy with this ruling.

De-Cix said in a statement that it finds it "incomprehensible" that the Leipzig court failed to deal with the BND's alleged violations, as detailed by the exchange. It added that everyone's privacy rights are now solely in the hands of the government's intelligence oversight committee.

German residents shouldn't be happy with it either. What's been shown repeatedly in the wake of the Snowden leaks is that government oversight of surveillance agencies and programs is weak, ineffective, and frequently given little to no information to work with. The powers granted by various national security laws make the problem worse by expanding surveillance powers and reining it whatever's left of their oversight. Recent years have seen some reform efforts put in place, but beyond making hypocritical noise about the NSA's surveillance of German politicians, not much has been done on the legislative front in Germany, other than to codify abusive surveillance to make it more resistant to legal challenges.

Filed Under: bnd, dragnet, germany, surveillance

Study Shows That Wartime Program To Abolish Copyright On German Science Books Brought Significant Benefits To US

from the perhaps-we-should-do-it-more-often dept

As Techdirt readers know, there is a ratchet effect that means copyright always gets longer and stronger. As well as being inherently unfair -- why must the public always lose out when copyright law is changed? -- there's another unfortunate consequence. If the term or breadth of copyright were reduced from time to time, we would be able to test the effects of doing so on things like creativity. For example, if it turned out that shortening copyright increased the number of works being produced, then there would be a strong argument for reducing it further in the hope that the effect would be strengthened. The fact that we have been unable test this hypothesis is rather convenient for copyright maximalists. It means they can continue to call for the term of copyright to be increased without having to address the argument that this will cause less creativity, or reduce access to older works.

Even though it is not possible to test the effects of reduced copyright directly, two US academics, Barbara Biasi and Petra Moser, have spotted a clever way of investigating the idea indirectly, in the field of science publishing. As they write in a post on CEPR's policy portal, in 1942 the US Book Republication Program (BRP) allowed US publishers to reprint exact copies of German-owned science books, effectively abolishing copyright for that class of works. They have looked at what impact this dramatic change had on the use of those reprinted works by scientists. Comparing citation rates before and after the BRP was introduced is not enough on its own: citation rates fluctuate, so it is necessary to compare the BRP citation rate with something else. The researchers' solution is to look at the citation rate of Swiss books from the same time:

This approach addresses the issue that English-language citations may have increased mechanically after 1942, if English-language scientists published more after the war. Like German scientists, Swiss scientists were leaders in chemistry and mathematics and wrote primarily in German, but due to Switzerland's neutrality, Swiss-owned copyrights were not accessible to the BRP. [Office of Library Services] estimates of a matched sample of BRP and Swiss books (in similar fields and with similar levels of pre-BRP non-English citations) confirm the significant increase in citations in response to the BRP.

Specifically, there was a 67% increase in citations of BRP books compared to similar Swiss books. The research suggests this was driven largely by the 25% drop in average prices seen after the BRP scheme was introduced. The reduction in price seems to have allowed a wider range of US libraries to purchase the more affordable BRP texts, whereas Swiss books remained concentrated in the holdings of two wealthy research libraries (Yale and Chicago). Better access was correlated with more citations: the data shows that the latter increased most near the locations of BRP libraries. The researchers conclude:

In the context of contemporary debates, our findings imply that policies which strengthen copyrights, such as extensions in copyright length, can create enormous welfare costs by discouraging follow-on science, especially among less affluent institutions and scientists.

Critics might point out that this is just one study of one rather specific area. But that's an argument for reducing copyright terms, perhaps on a trial basis, to see whether the results of this research are confirmed. However, the copyright ratchet will never allow that, not least because the companies involved probably know it would confirm that constantly strengthening copyright is bad for everyone except themselves.

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Filed Under: benefits, copyright, germany, public domain, science, us

ICANN's Pre-emptive Attack On The GDPR Thrown Out By Court In Germany

from the who-is-whois-for? dept

The EU's General Data Protection Regulation (GDPR) has only just started to be enforced, but it is already creating some seriously big waves in the online world, as Techdirt has reported. Most of those are playing out in obvious ways, such as Max Schrems's formal GDPR complaints against Google and Facebook over "forced consent" (pdf). That hardly came as a shock -- he's been flagging up the move on Twitter for some time. But there's another saga underway that may have escaped people's notice. It involves ICANN (Internet Corporation for Assigned Names and Numbers), which runs the Internet's namespace. Back in 2015, Mike memorably described the organization as "a total freaking mess", in an article about ICANN's "war against basic privacy". Given that history, it's perhaps no surprise that ICANN is having trouble coming to terms with the GDPR. The bone of contention is the information that is collected by the world's registrars for the Whois system, run by ICANN. EPAG, a Tucows-owned registrar based in Bonn, Germany, is concerned that this personal data might fall foul of the GDPR, and thus expose it to massive fines. As it wrote in a recent blog post:

We realized that the domain name registration process, as outlined in ICANN's 2013 Registrar Accreditation Agreement, not only required us to collect and share information we didn't need, it also required us to collect and share people's information where we may not have a legal basis to do so. What's more, it required us to process personal information belonging to people with whom we may not even have a direct relationship, namely the Admin and Tech contacts [for each domain name].

All of those activities are potentially illegal under the GDPR. EPAG therefore built a new domain registration system with "consent management processes", and a data flow "aligned with the GDPR's principles". ICANN was not happy with this minimalist approach, and sought an injunction in Germany in order to "preserve Whois data" -- that is, to force EPAG to collect those administrative and technical contacts. A post on the Internet Governance Project site explains why those extra Whois contacts matter, and what the real issue here is:

The filing by ICANN's Jones Day lawyers, which can be found here, asserts a far more sweeping purpose for Whois data, which is part of an attempt to make ICANN the facilitator of intellectual property enforcement on the Internet. "The technical contact and the administrative contact have important functions," the brief asserts. "Access to this data is required for the stable and secure operation of the domain name system, as well as a way to identify those customers that may be causing technical problems and legal issues with the domain names and/or their content."

As the tell-tale word "content" there reveals, the real reason ICANN requires registrars to collect technical and administrative contacts is because the copyright industry wants easy access to this information. It uses the personal details provided by Whois to chase the people behind sites that it alleges are offering unauthorized copies of copyright material. This is precisely the same ICANN overreach that Techdirt reported on back in 2015: the organization is supposed to be running the Internet's domain name system, not acting as a private copyright police force. The difference is that now the GDPR provides good legal and financial reasons to ignore ICANN's demands, as EPAG has noted.

In a surprisingly swift decision, the German court hearing ICANN's request for an injunction against EPAG has already turned it down:

the Court said that the collection of the domain name registrant data should suffice in order to safeguard against misuse the security aspects in connection with the domain name (such as criminal activity, infringement or security problems).

The Court reasoned that because it is possible for a registrant to provide the same data elements for the registrant as for the administrative and technical contacts, ICANN did not demonstrate that it is necessary to collect additional data elements for those contacts. The Court also noted that a registrant could consent and provide administrative and technical contact data at its discretion.

However, as ICANN rightly notes, that still leaves unanswered the key question: would collecting the administrative and technical contact information contravene the GDPR? ICANN says it is "continuing to pursue the ongoing discussions" with the EU on this, and a clarification of the legal situation here would certainly be in everyone's interests. But there is another important angle to this. As the security researcher Brian Krebs wrote on his blog back in February:

For my part, I can say without hesitation that few resources are as critical to what I do here at KrebsOnSecurity than the data available in the public WHOIS records. WHOIS records are incredibly useful signposts for tracking cybercrime, and they frequently allow KrebsOnSecurity to break important stories about the connections between and identities behind various cybercriminal operations and the individuals/networks actively supporting or enabling those activities. I also very often rely on WHOIS records to locate contact information for potential sources or cybercrime victims who may not yet be aware of their victimization.

There's no reason to doubt the importance of Whois information to Krebs's work. But the central issue is which is more important for society: protecting millions of people from spammers, scammers and copyright trolls by limiting the publicly-available Whois data, or making it easier for security researchers to track down online criminals by using that same Whois information? It's an important discussion that is likely to rage for some time, along with many others now being brought into sharper focus thanks to the arrival of the GDPR.

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Filed Under: copyright, domain registrars, enforcement, gdpr, germany, privacy, whois
Companies: epag, icann, tucows

Facebook Moderation Ramps Up In Germany And Everything Keeps Getting Worse For Its Users

from the bad-laws-and-worse-outcomes dept

Germany's new hate speech law -- and its intersection with social media platforms -- has been a disaster. Subjecting platforms to millions of Euros in fines for each violation, the push to cleanse the (German) internet of hate speech has resulted in plenty of predictive content policing. When not nuking legal criticism or satire mocking intolerant speech, the new law is creating a moderating nightmare for Facebook and other social media services.

The German wing of Facebook's moderation employs 1,200 moderators who forward anything borderline to Facebook's legal team, who then forward close calls they can't make to another outsourced team of lawyers well-versed in German law. That's a lot of money spent to avoid 50 million euro fines, but likely necessary given the law's demand illegal content be removed within 24 hours. Facebook may have to the money to do this, but other platforms simply don't have the resources. Compliance will result in Germans being given fewer services to choose from, all in the name of "protecting" Germans from hateful speech.

But is the law really serving the German people? Or is it a legislative feel-good effort of marginal utility with the possibility of collecting massive fines the ribbon on top? Linda Kinstler's long article on Facebook's proactive moderation efforts in Germany suggests the general public doesn't need these extra protections as much as the government seems to think they do.

Freedom-of-information disclosures published by the digital-rights website Netzpolitik revealed that no fines have yet been levied for systematic failures to delete posts, and the government has only received 311 requests from citizens requesting that content be removed (25,000 requests were expected)—both revelations suggest social-media companies are at least doing an effective job implementing the law.

Sure, this may suggest companies are staying ahead of the curve when it comes to moderation. It also suggests citizens find "illegal" content far less offensive than their government does. It may also suggest the legislation was completely unnecessary, since companies have been actively nuking content the government doesn't actually find illegal.

The law is serving an additional purpose -- one also unrelated to the sensibilities of German constituents. Political parties have turned the law into a rallying cry, claiming the government is merely trying to censor unpopular views. These claims are being made even as those making them turn to German speech laws to bury criticism of them and their views. Compounding irony with the omnipresent hypocrisy, a speech law enacted to safeguard the nation's influx of immigrants has become a weapon deployed by Germany's far-right political wing -- one staunchly opposed to the free flow of foreigners across Germany's borders.

It certainly hasn't made the average Germany citizen feel any more empowered. Facebook will delete accounts after too many violations, even if the violations are tied to a law the company tends to over-enforce.

“I’m far from being a fan of the far right, but a lot of them are afraid that their postings are deleted because of their beliefs, not because of what they say,” said Jeorg Heidrich, a German internet lawyer and a longtime opponent of the regulation. He said that the NetzDG incentivizes social-media companies to “delete in doubt”—to remove any content that seems like it might be illegal—and he is one of many who have observed a general “chilling” of speech online and offline in Germany. “The NetzDG is on people’s minds,” he said. “Generally, people are more careful what to think, what to write. Lots of people are afraid of losing their accounts.”

As it stands now, the law offers nothing to those on the receiving end of over-moderation. It was put into place with no takedown challenge mechanism other than suing Facebook directly. This is beyond the reach of average citizens, ensuring only a small percentage of users will be able to (possibly) save their accounts from deletion, even if the content removed doesn't necessarily violate German law.

The law is broken and needs to be fixed. Without this, the indirect repression of speech and other collateral damage will continue. Facebook can't fix this for the government. All it can do is rely on a team of moderators to get to questionable content before the German government does. This doesn't leave room for nuance or even consistency. Because Facebook stays ahead of the German speech law, Facebook is the law, as far as most of its German users are concerned. Violating Facebook's internal guidelines is no different than violating German law, even when the two disagree. Either way, users are one step closer to account deletion and the sanitizing of the internet for German consumption has blunted the effectiveness of the world's primary communication tool.

Filed Under: censorship, content moderation, free speech, germany, hate speech, moderation, social media
Companies: facebook