Canadian Government Wants To Regulate Social Media Like Broadcast

from the not-gonna-work dept

It's Canada's turn in the carousel of attempts at terrible internet regulation around the world. The ruling Liberal party, which professor and internet law researcher Michael Geist has called the most anti-internet government in Canadian history for its wide variety of planned new internet laws, has been working for months on a bill to amend the Broadcasting Act and greatly broaden its scope, giving the CRTC (Canada's counterpart to the FCC) authority over all kinds of online video and audio.

Canada has a long history of requiring broadcasters to support and air Canadian content, setting percentages of airtime that must be dedicated to it. While this is controversial and of questionable efficacy, it is at least coherent with regards to television and radio broadcasting over public airwaves — but Bill C-10 would bring streaming services and many other websites under the same regulatory regime, which also includes even more concerning powers to regulate political speech. Supposedly, this is targeting services like Netflix and Spotify — which already raises some serious questions as to how such regulation would work — while the bill's champion, Heritage Minister Steven Guilbeault, has repeatedly insisted that it will not cover social media and user generated content. The clause excluding such content was already worryingly narrow, and now the government has removed it anyway. And yet Guilbeault continues to insist user generated content has nothing to worry about, even though there are multiple reasons this is clearly untrue — not least of which is a new "exception that proves the rule" amendment setting the contours of UGC regulation, to be considered soon:

The amendment is a clear acknowledgement that user generated content are programs subject to CRTC’s regulation making power. Liberal MPs may claim the bill doesn’t do this, but their colleagues are busy submitting amendments to address the reality.

But it is not just that the government knew that its changes would result in regulating user generated content. The forthcoming secret amendment only covers one of many regulations that the CRTC may impose. The specific regulation – Section 10(1)(c) of the Broadcasting Act – gives the CRTC the power to establish regulations “respecting standards of programs and the allocation of broadcasting time for the purpose of giving effect to the broadcasting policy set out in subsection 3(1).” While the government plans to remove that regulation from the scope of user generated content regulations, consider all the other regulations it intends to keep and impose on millions of Canadians. Regulations that are not found in the amendment and therefore applicable to user generated content include regulations:

(a) respecting the proportion of time that shall be devoted to the broadcasting of Canadian programs;

(b) prescribing what constitutes a Canadian program for the purposes of this Act;
(e) respecting the proportion of time that may be devoted to the broadcasting of programs, including advertisements or announcements, of a partisan political character and the assignment of that time on an equitable basis to political parties and candidates;


Each of these speak to potential new regulation on the free speech of Canadians. Most notable may be political speech, which gives the CRTC the power to order equal time for partisan political speech. While this was designed for broadcast networks, the legislation would now cover all programs, including user generated content.

Correction: The way the bill is worded, online services are apparently not covered by the "political balance" regulatory powers.

It's a stunning, virtually unprecedented attack on the free speech of Canadians. Among the bill's biggest problems is the fact that many of these powers are extremely vague and administered at the discretion of the unpredictable CRTC — which is also part of what allows the politicians behind it to equivocate and deny when pressed on what exactly it will do. It has been called "one of the most radical expansions of state regulation in Canadian history" by those journalists who have noticed just how far-reaching it might be:

While the government claims it would not empower the CRTC to regulate smaller services such as Britbox, social media sites such as YouTube, or online news content, the bill contains no specific provisions that would prohibit it – and includes provisions that seem to allow it. For example, while the bill exempts “programs that are uploaded to an online undertaking” by its users and “online undertakings whose broadcasting consists only of such programs,” it leaves the way open for the CRTC to regulate services that show both user-generated and curated content. Like YouTube.

Likewise, lots of streaming services offer news content alongside movies and other fare. And lots of text-based news organizations, such as The Globe and Mail, also stream audio and video. So a specific exemption for audiovisual news content would not be greatly reassuring, even if the bill contained one – which it doesn’t.

Luckily, the bill is getting much more attention following the latest changes. Unluckily, it's at risk of becoming mired in the broader partisan fights of Canada's parliament — even though this is a case of something that everyone, from every party (not least the Liberals pushing it) should oppose. I don't have to explain why applying such regulations, especially about political "balance", to social media would be a disaster for free speech, especially now with the pandemic keeping people trapped at home and spawning multiple political crises across the country. It's not at all clear how the CRTC would use these powers, but there's little reason to believe they'd use them wisely (as if such a thing is even possible), and the uncertainty alone could cause user generated content platforms to clamp down on what Canadians can share.

Plus, it's especially concerning the way the government has repeatedly misled the public about what the bill will do, often contradicting itself and leaving the text full of loopholes that means it might apply to all kinds of unexpected things like app stores. Canadians from every part of the political spectrum must recognize Bill C-10 as the astonishing attack on free expression that it is, and force the government to reject it — or else the internet in Canada is going to get a whole lot smaller and less open.

Filed Under: audio, c-10, canada, content moderation, crtc, internet, internet freedom, regulations, social media, steven guilbeault, streaming, video

US Postal Service Is Surveilling Social Media Services Because It Apparently Has Plenty Of Time And Money To Waste

from the to-inquire-about-this-program,-please-send-SASE-to-iCOP dept

The United States Postal Service is still in the spying business. The USPS has been scanning pretty much every piece of mail that runs through its system, creating a massive database of metadata that serves whatever purpose the USPS imagines it does. "National security" or whatever the fuck.

When not helping the DEA find cash and the occasional drug shipment, the USPS is also apparently keeping tabs on social media users. This includes social media services with smaller, but perhaps more concerning, user bases. The name of the game is still "national security," but it's unclear why the Postal Service -- which has a hard enough time divvying up its limited resources -- is engaged in this sort of surveillance.

A two-page report [PDF] from the USPS's "iCOP" (Internet Covert Operations Program) [again, why is this actually a thing?] -- first reported by Yahoo News -- details the internet sleuthery of US Postal Service Inspectors.

The law enforcement arm of the U.S. Postal Service has been quietly running a program that tracks and collects Americans’ social media posts, including those about planned protests, according to a document obtained by Yahoo News.

The details of the surveillance effort, known as iCOP, or Internet Covert Operations Program, have not previously been made public. The work involves having analysts trawl through social media sites to look for what the document describes as “inflammatory” postings and then sharing that information across government agencies.

Again, this effort seems like -- at best -- a redundancy. Nearly every law enforcement agency has its own social media monitoring program. The DHS and its (mostly useless) Fusion Centers routinely compile information on social media posts. The FBI pretty much considers itself a national security agency at this point and has its own surveillance programs. And plenty of freelancers compile open source info from public posts in their spare investigative time.

But the USPS is in the mix too. And it seems to be treading very close to the First Amendment line.

“Analysts with the United States Postal Inspection Service (USPIS) Internet Covert Operations Program (iCOP) monitored significant activity regarding planned protests occurring internationally and domestically on March 20, 2021,” says the March 16 government bulletin, marked as “law enforcement sensitive” and distributed through the Department of Homeland Security’s fusion centers. “Locations and times have been identified for these protests, which are being distributed online across multiple social media platforms, to include right-wing leaning Parler and Telegram accounts.”

Planned protests are what's known as free speech round these parts, iCOPs. While there's always a chance someone might stumble across a few true threats, casting a net over the… um… 'Net to trawl for incriminating shitposts seems like an extremely questionable use of the government's time.

The two-pager points out that the most worrying stuff inspectors came across emanated from Parler. But even at its most concerning, the iCOP effort came up with nothing but some wasted tax dollars and a few incursions into inalienable rights territory.

“No intelligence is available to suggest the legitimacy of these threats,” it adds.

The civil liberties experts contacted by Yahoo for comment were more baffled than aghast, although there was certainly some of the latter because it's concerning when you can't think of a single good reason the USPS should be surveilling social media outlets. And this seems to have nothing to do with the US Postal Inspectors' purview, which should only cover criminal acts involving the mail system. Just because everyone's texting and IMing instead of sending letters and postcards doesn't mean the USPS should be allowed to start surveilling communications methods that no longer involve postage stamps.

Filed Under: post office, social media, surveillance, usps

The Pillow Dude's 'Free Speech' Social Media Website Will Moderate 'Swear Words' Because Of Course It Will

from the everyone-moderates dept

It seems like every few months a new social media app comes on the scene, promising to be the "free speech" social media app that says it won't "censor" (by which they mean moderate) anything. And those of us who have been in this space for more than two seconds laugh. Because every single internet service that allows third party speech sooner or later realizes that moderation is not optional -- it's necessary to keep any site running. At a basic level, it starts with spam. Leaving up spam makes a site unusable. After that, there are things that you are legally required to remove, including child sexual abuse material and (in some cases) copyright infringing material.

Sooner or later, though, every such site realizes that it has to go through the content moderation learning curve. That doesn't mean they all need to follow the same rules or do the same thing, but they do need to recognize that content moderation questions are always there. This includes things like "how do you deal with abuse and harassment" and just generally how do you deal with trolls who are clearly up to no good. There are many different approaches to this, but insisting that you're the "free speech" site that will "do nothing" is not a realistic statement. It's one that demonstrates ignorance.

Enter the MyPillow dude, Mike Lindell. Last month Lindell announced that he was building his own social media site, with a tagline "voices of free speech." I'm not even sure what that means. He insisted that people will have "10 times more followers" on his janky platform, and that Twitter and Google will "be a thing of the past," which shows a bit of bravado, I guess.

Of course, the "free speech" part of his "voices of free speech" is apparently a lot more limited than is implied. Lindell has now announced that "the four swear words" will not be allowed. There are just four?

“You don’t get to use the four swear words: the c-word, the n-word, the f-word, or God’s name in vain,” Lindell says in the video.

Huh. So, I'm not even convinced which "c-word" is being used here, and I note that "the s-word" is apparently allowed? From what was said it sounds like Lindell and whatever programmer he's pulled into this wacky scheme have implemented a lame keyword filter, which anyone who has done work in content moderation will tell you does not work nearly as well as people expect it to. People who want to use that words will quickly find alternatives, g-d dammit. I mean, f0ck, who doesn't know that s#it?

Anyway, this has all the hallmarks of yet another social media train wreck, but I look forward to Lindell and Trump fighting it out for users of their new social networks, when they're not in court relying on Section 230 to protect them from legal liability of whatever crazy things their users are posting.

Filed Under: content moderation, free speech, mike lindell, social media, swear words
Companies: frank, mypillow

North Carolina State Senators Read Section 230 Completely Backwards, Introduces Laughably Confused Bill In Response

from the that's-not-how-any-of-this-works dept

What is it with state legislators not having anyone around them who can explain to them how Section 230 works, leading them to push incredibly stupid state bills? We've written about both Republicans and Democrats pushing bills to modify Section 230, ignoring how 230 likely pre-empts those attempts (if the 1st Amendment doesn't already).

Many of these bills misunderstand Section 230, the 1st Amendment, or how content moderation works. Though, many of them misunderstand the law in fairly predictable ways. Last week three state Senators in North Carolina -- Senators Ted Alexander, Kevin Corbin, and Todd Johnson -- surprised me. Oh no, it's not that they were some state elected officials who actually bothered to understand Section 230, because trust me, they did not. But they surprised me in that they misread Section 230 in a novel and completely ridiculous way that I'd not seen before. It's so bad that it causes me to question the great state of North Carolina: how do you elect people this bad?

The bill has all the trappings of many of the dumb Republican state 230 bills that think (incorrectly) that they can compel websites to host speech (something that is not allowed under the 1st Amendment). But this one takes it up a level. The bill is officially entitled: An Act to Enact the Stop Social Media Censorship Act to Prohibit Certain Social Media Websites from Censoring Certain Political or Religious Speech. That is already quite a mouthful. First it's act to enable another act, which says that it will stop to prohibit? I mean, c'mon guys.

But here's where things get just... wrong. The authors of the bill claim (wildly incorrectly) that Section 230 has a "state law exemption" that allows them to "cure abuses of Section 230." Here's what the bill says:

Whereas, repealing section 230 of the Communications Decency Act at the federal level is unnecessary because it already includes a state law exemption, and the Stop Social Media Censorship Act was crafted to fall squarely in the state law exemption of section 230 to cure abuses of section 230 to protect the consumers of this State

Except, that's wrong. I mean, it's literally the exact opposite of what Section 230 actually says. Section 230(e)(3) does not "exempt" states, it pre-empts them and says that no state can pass a law that ignores 230. Honestly, it looks like whoever drafted this bill read only the first half of the first sentence of (e)(3) and thought they'd found the loophole. Here's what (e)(3) actually says:

Nothing in this section shall be construed to prevent any State from enforcing any State law that is consistent with this section. No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.

That is not saying that 230 exempts state law. It's saying that it does not allow state laws that are inconsistent with 230. And, this is not exactly a secret. I mean, beyond saying it pretty damn clearly, there are tons of courts that have made this point over and over again over the years. State laws are pre-empted by 230, and they can't pass a law that gets around it. So, not only did the authors of this bill not even read the full sentence they seem to be pointing to, they did apparently no research at all, nor spoke to any Section 230 expert who could have told them that the law does not allow this.

The rest of the bill is the usual performative nonsense, mistakenly claiming that social media companies practiced "bait-and-switch" because they "market themselves as free, fair and open to all ideas" but that because they've moderated fraudsters, liars, and disinfo peddlers, that somehow makes their marketing claims "false advertising and deceptive trade practices." This is all, of course, utter nonsense. These websites have every right to moderate as they see fit both under the 1st Amendment and under their own terms of service, which everyone agrees to when they sign up.

The bill specifically tries to create a civil right of action for people who have been moderated to bring claims of deceptive trade practices, false advertising, breach of contract, bad faith, unfair dealing, fraudulent inducement, and, my personal favorite: "The stifling of political and religious speech in the modern day digital public square cultivated by social media websites that have achieved critical mass through fraud." Another mouthful of utter nonsense.

The bill does say that some speech is okay for a website to moderate -- including calls for "immediate acts of violence" (distant future violence is apparently okay). It also says that sites can take down impersonation accounts or bullying of minors (bullying adults is apparently fine as well). It also says, explicitly, that social media companies cannot take down content for hate speech. Like, literally, these three ignorant, foolish senators are insisting that websites be forced to host hate speech. Explicitly:

A social media website may not utilize a user's alleged hate speech as a basis for justification or as a defense to an action under this section

That's kind of impressive. I mean, normally when idiot elected officials push bills like this, they act surprised when people point out that their bill will encourage hate speech. But here, Senators Alexander, Corbin, and Johnson are literally putting it on front street that social media companies must host hate speech and bullying (as long as it's not a minor). Fuck these guys (and under their own bill, they should be fine with such insults).

The bill also targets the other mythical bogeyman of ignorant Republicans: "shadowbanning." It would not be allowed under this law.

Even without Section (e)(3), which these foolish, foolish elected officials misread, this bill is so incredibly in violation of the 1st Amendment that it would never actually become operational. But the level of sheer stupidity built into this bill raises serious questions about how these complete and utter fools ever got elected to anything more powerful than the local dog catcher.

Filed Under: 1st amendment, content moderation, kevin corbin, north carolina, pre-emption, section 230, social media, ted alexander, todd johnson

If Trump Ever Actually Creates A Social Network Of His Own, You Can Bet It Will Rely On Section 230

from the i-mean,-come-on dept

There have been rumors for ages that former President Donald Trump might "start" a social network of his own, and of course, that talk ramped up after he was (reasonably) banned from both Twitter and Facebook. Of course Trump is not particularly well known for successfully "starting" many businesses. Over the last few decades of his business career, he seemed a lot more focused on just licensing his name to other businesses, often of dubious quality. So it was no surprise when reports came out last month that, even while he was President, he had been in talks with Parler to join that site in exchange for a large equity stake in the Twitter-wannabe-for-Trumpists. For whatever reason, that deal never came to fruition.

But, over the weekend, Trump spokesperson (and SLAPP suit filer) Jason Miller told Fox News that Trump was preparing to launch his own social network in the next few months. Amusingly, right before Miller made this claim, he noted exactly what I had said about how Trump being banned from Twitter and Facebook wasn't censorship, since Trump could get all the press coverage he wanted:

“The president’s been off of social media for a while,” he told Fox News Media Buzz host Howard Kurtz, “[but] his press releases, his statements have actually been getting almost more play than he ever did on Twitter before.”

But he then followed that up with an offhand comment saying:

I do think that we’re going to see President Trump returning to social media in probably about two or three months here with his own platform.

And this is something that I think will be the hottest ticket in social media, it’s going to completely redefine the game, and everybody is going to be waiting and watching to see what exactly President Trump does. But it will be his own platform.

Many, many people have assumed that -- just like revealing his tax returns, infrastructure week, and his shiny new healthcare plan -- that this announcement was just bluster and nonsense with no actual expectation that anything will ever be done. And that is perhaps likely. Even Trump's normal allies seem less than thrilled with the idea, though mainly because it may lead to further fragmenting among the "social media website for MAGA conspiracy theorists." Others have, quite reasonably, pointed out that a social media site built on Trump's cult of personality is likely to be crazy boring and just not that interesting.

However, I kind of do hope that it actually comes to be, if only to see just how quickly Trump's new social network has to rely on Section 230 to defend itself in court. Remember, Trump spent the last year of his presidency slamming Section 230 (which he completely misrepresented multiple times and never seemed to actually understand). You may recall that one of the parting shots of his presidency was to try to block military funding if Congress wouldn't completely repeal Section 230.

But, of course, if a TrumpBook ever came into actual existence, you can bet that (1) it, like Parler, would need to speedrun the content moderation learning curve, and (2) would certainly be subject to some lawsuits regarding whatever insane crap its users would post. Trump's own comments on his own site would not be protected by Section 230, as that would be content created by an "employee" of the site itself, but the site would be protected from liability from whatever nonsense his sycophantic fans posted. And you can bet that his lawyers (assuming he could find any who would work for him) would very quickly lean on Section 230 to protect the company from any such lawsuits.

I mean, we've already seen Trump rely on anti-SLAPP laws in court, despite demands to "open up our libel laws." So he's already got a precedent for relying on the very same laws he hates in court. Hell, Trump has even relied on Section 230 in court to argue that he wasn't legally liable for his own retweets.

So, sure, let him start his own social network, and then be forced to recognize how Section 230 is actually something that he needs.

Filed Under: donald trump, section 230, social media

It's Not Just Republican State Legislators Pushing Unconstitutional Content Moderation Bills

from the pointing-the-finger-at-the-other-side-of-the-aisle dept

Over the last month we've written quite a few times about various state legislatures (and Governors) picking up on the nonsensical and unsupported statements that (1) "conservatives" face too much bias in social media content moderation decisions and (2) that Section 230 is somehow to blame for this. They've pushed a whole bunch of blatantly unconstitutional state laws that would seek to limit how social media companies can moderate content -- effectively compelling them to host content they disagree with (which would violate the 1st Amendment). Of course, as we've noted for quite some time now, both Republicans and Democrats seem to be very mad at Section 230, but for totally contradictory reasons. Republican bills seek to make social media companies moderate less content, while Democratic bills seek to make social media companies moderate more content.

Both approaches are unconstitutional violations of the 1st Amendment. While most of the fights over the past few years have happened in Congress, now with these bad bills moving to the state legislators, it appears that Democrats don't want to be left behind. Over in Colorado, Colorado Senate president pro tempore Kerry Donovan would seek to force companies to moderate "hate speech," "fake news," and "conspiracy theories."

The full bill is really, really bad. Websites would need to register (for a fee) with a "digital communications commission" in Colorado, and that Commission would accept complaints against social media websites if they were used for hate speech, undermining election integrity, disseminating intentional disinformation, conspiracy theories, or fake news. There's a big problem with this: most of that is protected under the 1st Amendment. I know that many people don't like that those things are protected speech, but you actually should like it. Because if "fake news" or "undermining election integrity" was not protected under the 1st Amendment, just imagine how the Trump administration would have abused both things.

After all, it spent four years arguing that any criticism of the administration was "fake news" and claimed, repeatedly (despite the total lack of evidence) that the processes and procedures that helped make the 2020 election fair actually "undermined election integrity." This is why we don't let the government punish people for speech around those issues, because the government will define it in ways we dislike.

As Eugene Volokh notes, beyond the fact that all of this is pretty clearly unconstitutional, the bill doesn't even bother to define "hate speech." Or "undermine election integrity." Or "fake news." Or "conspiracy theories." Or "intentional disinformation."

Kerry Donovan is now running for US Congress as well (against conspiracy theorist Lauren Boebert). One would hope that she would have first learned how the 1st Amendment works before seeking to run for Congress. We might agree that Boebert clearly doesn't belong anywhere near Capitol Hill, but that's no excuse for misunderstanding some fairly basic principles in the Bill of Rights.

Filed Under: 1st amendment, content moderation, disinformation, election integrity, fake news, free speech, hate speech, kerry donovan, lauren boebert, social media