Why Requiring Social Networks To Monitor Posts To Spot Terrorists Will Make It Even Harder To Catch Them

from the false-positives dept

Last week we wrote about how the UK government was clearly signalling it wanted social networks to start monitoring users' activity for tell-tale signs of terrorist intentions -- without, of course, worrying about how that might be done. Now, James Ball in the Guardian has put together a great summary of why that approach cannot possibly work.

He runs through various ways Facebook, Twitter and the rest might try to spot potential terrorists before they acted -- for example, by using keywords, lists of suspicious sites, social graphs etc. But one feature automated systems all share is that to avoid the risk of letting individuals slip through the net, the criteria for flagging up people have to be loose. And that, inevitably, means there will be false positives:

However sophisticated these systems are, they always produce false positives, so if you are unlucky enough to type oddly, or to say the wrong thing, you might end up in a dragnet.

Here's what that would mean in practice:

Data strategist Duncan Ross set out what would happen if someone could create an algorithm that correctly identified a terrorist from their communications 99.9% of the time -- far, far more accurate than any real algorithm - with the assumption that there were 100 terrorists in the UK.

The algorithm would correctly identify the 100 terrorists. But it would also misidentify 0.01% of the UK's non-terrorists as terrorists: that’s a further 60,000 people, leaving the authorities with a still-huge problem on their hands. Given that Facebook is not merely dealing with the UK’s 60 million population, but rather a billion users sending 1.4bn messages, that's an Everest-sized haystack for security services to trawl.

Requiring social networks to bring in any kind of automated monitoring -- the only kind that is feasible given the huge volume of posts involved -- will simply cause the intelligence agencies to be swamped with a huge number of false leads that will make it impossible to pick out the real terrorists from among the data supplied. In other words, the UK government's plans, if implemented, will just make a bad situation much, much worse.

Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+

Filed Under: false positives, haystacks, liability, monitoring, policing, statistics, terrorists, uk

Human Rights Groups Ask Senate To Reject Proposed Sex Trafficking Law That Strips Long-Held Protections For Website Owners

from the government-would-rather-create-new-crimes-than-stamp-out-the-old-ones dept

Various members of the US government are hoping to repeat the dubious success of shutting down Craiglist's adult ads by targeting Backpages.com. This has gone on for a few years at this point, with states' attorneys general and various legislators laying the blame for sex trafficking at the feet of the online classified ad service.

Rather than realize the service could be an ally in the fight against these criminals, law enforcement agencies -- along with like-minded government officials -- have spent a lot of time and money pursuing a total shutdown of the service.

Now, the Senate is considering the "SAVE Act" (Stop Advertising Victims of Exploitation Act)[pdf link], which was passed out of the House by a 392-19 vote earlier this year. The bill expands the definition of "trafficking" to include "advertising," amending the definition of this federal crime.

Worse, it strips away protections website owners who host third-party content have enjoyed for years. The summary provided by Congress.gov highlights proposed changes that will do damage to many more entities than its intended targets.

Shields from liability under such prohibition an Internet access service provider, browser provider, common carrier, telecommunications carrier, or other generic search or utility provider solely based on providing generic search or utility services.

Notably, website owners are excluded from these liability protections, basically eliminating Section 230 immunity for anything the government considers to be an "adult advertisement."

Requires anyone selling, commercially promoting, or placing an adult advertisement to: (1) verify the identity of each person purchasing advertisement space for, and each person depicted in, such advertisement; (2) verify that each person whose goods or services are advertised is not under age 18; (3) create and maintain individually identifiable records pertaining to each such person for at least seven years; and (4) affix to each adult advertisement a statement describing where such records may be located.

Not only will website owners now be held accountable for third-party content, they'll also be expected to police it to ensure nothing runs afoul of this broadly-worded law. Failure to do so could result in a five-year prison sentence.

The very obvious and extensive collateral damage of this legislation is pointed out in a letter to senators authored by a number of human rights organizations and trade associations. [pdf link]

We of course share the vital goal of ending human trafficking, of all kinds. Trafficking is an egregious crime. Congress should provide additional funding for desperately needed victims services, counseling, and community outreach as well as prosecutions under the strong federal law that already criminalizes the conduct of those who knowingly advertise such activity online.

However, the unfortunate fact is that this bill is overbroad, counterproductive, and would place unconstitutional burdens on the free speech and privacy rights of millions of Americans who have nothing to do with trafficking. S.2536 creates new and draconian federal criminal liability for websites and other online services that host content created by third parties, including both online and print publications, many of which are small businesses. Furthermore, not only does this raise serious free speech and privacy concerns, it will drive the truly bad actors – the traffickers – underground and overseas, while subjecting wholly innocent individuals to potential criminal liability for unknowingly running afoul of this sweeping law.

The letter also points out how the addition of new recordkeeping requirements will only serve to turn more law-abiding citizens into criminals -- and easy targets for cops and prosecutors who love easy "wins."

S.2536 does not require that the website operator, online service, or publication know or intend to host “adult advertising” content before imposing liability. If one of a site’s millions (or billions) of users were to upload a post or an image that fell under the bill’s broad definition and that site operator had not already collected a copy of the user’s driver’s license, the site operator would face a mandatory minimum penalty of $250,000 and up to 5 years in prison. The effects would be felt the hardest by smaller businesses, both online and print, for whom one single violation triggering the mandatory minimum penalty could very well mean bankruptcy, and would serve as a disincentive to new start-ups.

Thus, S.2536 would create obvious privacy concerns, as any reasonable operator would feel immense pressure to collect the government-issued photo ID of each of their users to guard against the potential that one of them might one day post lawful content covered by the bill.

The end result of this legislation won't be less trafficking, but rather, more criminals. Law enforcement resources will be diverted to investigate and prosecute site owners and third-party contributors, neither of which may be aware of the new regulations, much less what the government will decide is covered by the term "adult advertising" on any particular day, in any particular jurisdiction. Rather than contribute to the elimination of trafficking, this legislation will simply dump more people in prison and run more small companies out of business.

Will the Senate listen? Considering that opposing this bill puts you on the side of sex traffickers and child exploitation, the odds of this bill being rejected are very low. Hopefully, some sanity will be amended into the proposed bill before it goes up for a vote. But the previous margin of victory (392-19) suggests this will sail right through the Senate as well, possibly before anyone notices the numerous problems inherent in the legislation.

Filed Under: advertisers, liability, save act, secondary liability, section 230, trafficking

Marc Randazza Emasculates Pick-Up Artist, Legal Counsel In Hilariously Brutal Response To A Bogus Takedown Demand

from the careless-butthurt-salve-application-results-in-further-burns dept

Another person has mistaken the First Amendment for umbrella coverage against criticism. Julien Blanc -- a self-described "international leader in dating advice -- one of several like-minded individuals employed by Real Social Dynamics (the “World’s top dating coaching, self-actualization & social dynamics company”), a company Blanc co-founded, had footage of one of his seminars go viral thanks to writer Jenn Li, who posted the "horrifying" footage at UK news outlet, The Independent.

Here's her brief description of the objectionable content contained in Blanc's/RSD's video:

When talking about how to “seduce” a Japanese woman, he is quoted as saying: “Just grab her… To take the pressure off, yell Pikachu or Pokemon or Tamagotchi or something”. He is obsessed with degrading Japanese women, and abusing his white male privilege. “At least in Tokyo, if you're a white male,” he says “you can do what you want. I'm just romping through the streets, just grabbing girls' heads, just like, head, pfft on the dick. Head, on the dick, yelling, 'pikachu'.”

In case anyone feels that this might be a misrepresentation of Blanc's views and actions, here's the video itself.


TL;DW: If you're a white male, you can pretty much do whatever you want to Japanese women, provided (a) you have one functioning arm and (b) you shout some half-assed Japanese term as a "disclaimer" or something. See also: included footage of Julien Blanc performing these actions on actual Japanese women while in Japan.

The backlash has been incredible. In addition to tons of internet commentary and further exposure of Blanc's misogyny, governments of foreign countries are now considering taking legal action to prevent Blanc from giving his seminars on their soil. Australia has already revoked his visa ahead of scheduled appearance, thanks to pressure from a Change.org petition. The UK and Canada are considering similar actions.

Real Social Dynamics has attempted to perform some damage control, but there are far too many fires to put out. So, it has begun doing the next best thing: issuing scattershot, baseless legal threats. One such legal threat went to the owner of InfiniteChan (aka 8chan), a message board modeled after the super-popular (and quite often, super-frightening) 4chan.

There are many mistakes made in this demand letter, written by Maurice Pilosof, "legal counsel" for Real Social Dynamic, but perhaps none is bigger than failing to realize that everything contained in the URL listed is user-generated. Far too many lawyers fail to understand the protections provided by Section 230. There are also far too many lawyers who simply don't care, throwing around their letterhead and officious tone in hopes of forcing swift capitulation.

Unfortunately for Maurice Pilosof and RSD, this ignorance (presumably willful, considering Pilosof presents himself as focused on "trademarks, copyrights, intellectual property transactions and music licensing") of Section 230 wasn't their biggest problem. Their biggest problem was the opposing force: the Randazza Legal Group. Marc Randazza and Michael Cernovich responded to RSD's stupid and baseless takedown demand with a blistering refusal loaded with colorful imagery and even more colorful language. [PDF link] Oh, and a full-page picture of Manzinga.

First, Randazza addresses the video itself, something not mentioned in the takedown demand but crucial to the understanding of what sort of person Pilosof is defending here.

Please correct me if I am wrong. This all started when your client posted a video in which Julien Blanc gives men advice on picking up Japanese women. (if you call it that)

Part of his advice is as follows: “at least in Tokyo, If you’re a white male, you can do what you want”...

[...]

I don’t know whether it is true that white men can do whatever they want in Tokyo. If that’s true, I’m moving there. I want to do whatever I want, without consequences. All I’ve been looking for my entire life is the ability to have a consequence-free existence. I thought that getting really rich was the secret to that. Imagine my delight when I learned that I don’t need to be a billionaire to do whatever the fuck I want. I’ve had the power to have a consequence free existence all along! I just had to look inside myself,and see my Caucasian DNA, look inside my pants and see my penis, and just seize it as my birthright (the power, not my penis).

After offering a bounty of $5,000 for anyone who videotapes themselves handing out a "royal ass kicking" to Blanc ("double" if it's one of the women Blanc attempts to assault), Randazza deals with Pilosof's/RSD's complaint that messages posted at InfiniteChan are "untrue, private and defamatory."

Lets go back to page one. Your client is the guy who seems to advocate sexual assault against random women, on the basis that he’s Caucasian, and they’re not. Neither Mike, nor I, are in any danger of winning the “Male Feminist of the Year Award.” But Jesus Hello Kitty Christ on a Rocket-Powered Toboggan, are you FREAKIN’ SERIOUS?

If you have the audacity to file a defamation claim on behalf of a guy who advocates sexual assault, and relies on racist bunk to justify it, then come at us, bro. Our client might just waive his CDA immunity and let the case stand on the merits of the defamation claim. I can not express how much joy I would find in watching you try and articulate how your client’s reputation has been harmed by anything other than his own asinine, racist, sexist, rapey-creep-scumbag statements.

Randazza closes by reminding RSD's lawyer that the First Amendment is double-edged. If his client wants to enjoy the privileges, he needs to learn how to deal with the downside.

Your client made some really objectionable statements. There is a price for that – it is called “criticism.” Your client acted like an ass, and people pointed at him and said “look at that asshole!” Rather than answer the criticism, your client sought to cower behind a wall of censorship. This really isn’t advisable for someone like your client, who will likely need to raise the shield of the First Amendment at some time in the near future.

Well said. The whole letter is worth a read (and a re-read). Too many people seem to feel the First Amendment guarantees a consequence-free platform for questionable and objectionable statements. That's where they're wrong. The government has no business trying to determine what can or can't be said, but the public is absolutely free to offer its opinion about the statements of others.

While some may point out that petitioning foreign governments in hopes of preventing Blanc from speaking is a violation of his rights, the fact is that Change.org petitions are also protected speech. Foreign governments are still free to ignore the more formalized hecklers' vetoes, but protecting a foreigner's domestic free speech rights isn't going to win them the adoration of the angered masses. Blanc may be forced to ply his wares in the US only -- a place where he enjoys greater speech protections, but also one where his "magical white guy powers" will be considerably more muted.

Filed Under: dmca, first amendment, free speech, julien blanc, liability, marc randazza, maurice pilosof, pick up artists, section 230, takedowns, threats
Companies: 8chan, infinitechan, real social dynamics

Italian Court Acquits Scientists Of Manslaughter Charges Incurred After Failing To Predict Deadly Earthquake

from the pitchforks-and-courtrooms dept

It seemed like something from The Onion… or Monty Python: scientists jailed for not predicting the 2009 earthquake in L'Aquila, Italy. Because their risk assessment delivered six days before the quake "failed" to prevent the earthquake from occurring, Judge Marco Billi decided all six scientists were guilty of manslaughter due to their "superficial, approximate and generic" analysis. They weren't held responsible for all 300+ deaths, but specifically for the 29 deaths of people who stayed in their homes (rather than venturing out) because they believed there was "no risk" of an earthquake.

Some sanity has finally prevailed, over three years since the post-earthquake insanity struck. [h/t to Techdirt reader wereisjessicahyde]

Six seismologists accused of misleading the public about the risk of an earthquake in Italy were cleared of manslaughter on 10 November. An appeals court overturned their six-year prison sentences and reduced to two years the sentence for a government official who had been convicted with them.

We'll get back to that last sentence in a moment, but let us first note that sanity hasn't completely prevailed.

The finding by a three-judge appeals court prompted many L’Aquila citizens who were waiting outside the courtroom to react with rage, shouting “shame” and saying that the Italian state had just acquitted itself, local media reported.

Sure, this could have the appearance of a government body (the National Commission for the Forecast and Prevention of Major Risks) getting an assist from another government body (the court system -- the same court system, mind you, that two years earlier convicted these witches scientists of manslaughter), but it isn't. It's the return to a better, simpler time when scientists weren't charged with criminal activities simply for providing risk analysis.

Now, back to the sentence that wasn't overturned.

The government official still doing hard time is Bernardo De Bernardinis, (then) deputy director of the Italian Civil Protection Dept. Apparently, the panel of judges considered his interpretation of the scientists' risk analysis to carry a bit more culpability. This could be because his interpretation of the scientists' assessment ("We showed a map where L’Aquila is purple, which means the highest hazard") was inexplicably much, much cheerier ("The scientific community tells me there is no danger because there is an ongoing discharge of energy"). As it stands now, De Bernardinis has had 16 charges of manslaughter dismissed, but is still working off the other 13.

Nature notes that, because it might take up to three months for the verdict to be published, we don't really know the rationale behind the acquittals. One would hope the reasoning runs along the lines of "to allow these convictions to stand would be batshit crazy, not to mention a latent threat to scientists all over our country." One of the scientists acquitted noted that it appeared the panel of judges agreed no crime had actually been committed -- which is basically the same thing as above, presumably with more legalese.

And, of course, this is a judicial system so it must be noted that these acquittals can be appealed and Italy may find itself locking up scientists again, much to the general aghastness of everyone.

Filed Under: earthquake, italy, lawsuits, liability, predictions

Sending Liability Up The Stack: Domain Registrars Potentially Liable For Infringement By End Users

from the tertiary-liability dept

For quite some time now, we've been concerned about the continued expansion of "secondary liability" concepts, adding more and more liability for copyright infringement to parties who are often far removed from any actual infringement. There are two major concerns with this. First, putting liability on one party for the actions of another just seems generally problematic. But, perhaps more importantly, when you put potential liability on an unrelated party, the end result is almost always excessive policing in a manner that hinders or entirely blocks perfectly legitimate activity and speech.

That's why a recent court ruling in Germany is so problematic. It's the followup to an earlier ruling that found a domain registrar, Key-Systems, liable for actions done by the users of a torrent tracking site H33T. H33T just hosted the torrent (which, we should remind you, is not the actual infringing file), and some users used that tracker to torrent the album Blurred Lines. When H33T failed to respond to a takedown notice, Universal Music went after the registrar, and the court said it was Key-System's responsibility to stop the infringement. Of course, the only way for the registrar to do that is to yank the entire domain.

The case was appealed, but the appeals court upheld the lower court ruling. Even though the registrar pointed out (accurately) that it had no way of knowing if the torrent was actually infringing, the court said that the registrar was responsible for assuming it must be infringing once it had contacted the domain owners and not received a response. That's an interesting shifting of the burden of proof. The court also seems unconcerned that the only way the registrar can remedy the situation is to take everything down, saying that if the website didn't want this to happen it should have responded promptly to the takedown notices it had received.

Much of this seems to focus on assuming guilt unless one can prove innocence, and further believing that it's somehow "obvious" to recognize when someone is infringing on copyrights. As the Universal Music lawyer tells TorrentFreak in the link above, the company is quite excited about this new power, and will "have this in mind when looking at other domains."

Filed Under: copyright, germany, liability, registrars, secondary liability, tertiary liability
Companies: h33t, key systems

Dangerous Rulings: Georgia Court Says Parents May Be Liable For What Their Kids Post On Facebook

from the bad-ideas dept

A Georgia appeals court has said that parents of a 7th grader can be held liable for what their son posted on Facebook. At issue is a Facebook post where the son created a fake Facebook profile of a classmate of his, posting distorted images of her to make her look fat (ah, junior high schoolers...) and then including "profane and sexually explicit comments on the page depicting her as racist and promiscuous." Alerted to this, the kid's school suspended him, and his parents grounded him. However, the Facebook page stayed up for 11 months. The parents of the girl then sued the parents of the boy, claiming that they had "breached a duty to supervise their child's use of a computer and an Internet account" and, further, that they had "breached a duty to remove defamatory content existing on their property." The court rejected that second argument, but found the first argument at least reasonable enough to proceed to a jury.

Part of the issue is that, after finding out about the fake page, the boy's parents, beyond grounding him, didn't look into what the page was, and where it was. The court argues that this could be negligent, because having been informed of the problematic page their son created, they may have had a responsibility to then monitor that page.

In this case, it is undisputed that Dustin used a computer and access to an Internet account improperly, in a way likely to cause harm, and with malicious intent. The Ahearns contend that they had no reason to anticipate that Dustin would engage in that conduct until after he had done so, when they received notice from the school that he had been disciplined for creating the unauthorized Facebook profile. Based on this, they contend that they cannot be held liable for negligently supervising Dustin’s use of the computer and Internet account. The Ahearns’ argument does not take into account that, as Dustin’s parents, they continued to be responsible for supervising Dustin’s use of the computer and Internet after learning that he had created the unauthorized Facebook profile. While it may be true that Alex was harmed, and the tort of defamation had accrued, when even one person viewed the false and offensive postings, it does not follow that the Athearns’ parental duty of reasonable supervision ended with the first publication.

But that seems problematic on any number of levels. There is no indication that the boy continued to post to the page after being disciplined for it. So there wasn't any issue with the parents' ongoing supervision of his computer and internet usage. The idea that they could retroactively be held liable because once they found out about it they only punished him and didn't go further to find and delete the page he created seems awfully troubling. And that's before even getting to the issue of why the liability should be put on the parents anyway. There's this myth out there that parents should supervise any and all computer/internet usage. Not only is that impossible, it's also a bad idea. Yes, parents should help kids learn to use the internet, including some early supervision, but part of learning to do something is learning to do it on your own. That means teaching them about risks and how to deal with them, and encouraging them to ask questions or raise concerns if they find them -- but it shouldn't mean watching over their shoulder every moment online.

This kind of ruling doesn't necessarily mean that parents across Georgia need to immediately start spying on their kids' surfing activities, but it does suggest -- ridiculously -- that upon notification of a problem, they suddenly have a responsibility to monitor and clean up any messes their kids caused. That's very dangerous thinking.

However, there is another interesting angle, which lawyer Marc Randazza has suggested on his blog, that the parents should make use of CDA Section 230 to claim they're immune from liability. Remember, the whole point of CDA 230 is that "no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." And yet, this ruling effectively holds the parents responsible for the speech of their son. CDA 230 is mostly used to protect service providers from liability, but the law clearly also applies to "users." As Randazza notes:

It is without dispute that the content was provided by another person, namely the son. The son, therefore, is the liable party – not the parents – and under the CDA, any claim to the contrary appears to be barred.

He points to one case, in California that seems at least marginally analogous:

In Delfino v. Agilent Techns. Inc., 145 Cal. App. 4th 790, 806 (2006), the California court of appeals found that when an employee used the employer’s computer network to send threatening messages, the employer was not liable. In that case, the court held that although the defendant-employer merely acted as the provider of the computer system, the plaintiff’s tort claims in essence sought to hold the employer liable for the publication of the threatening messages. Id. Therefore, the employer was immune under § 230.

Randazza further notes, in a footnote, that the rulings in two of Prenda/AF Holdings failed lawsuits, claiming "negligence" for leaving WiFi opened, further reinforce the idea that Section 230 should apply in cases involving things like "negligence" for enabling the actions of others. It's too bad the lawyers for the parents either chose not to raise this argument, or perhaps didn't even realize it was open to them.

Filed Under: appeals court, defamation, georgia, kids, liability, negligence, parents, section 230, social media
Companies: facebook

GitHub Promises To Alert Users To DMCA Notices Before Taking Content Down

from the interesting... dept

For many, many years, we've noted the serious problems of the DMCA's "notice and takedown" provisions -- which, arguably, violate the First Amendment. A potential alternative regimen, which would be much more reasonable, and avoid many of the censorship problems of the DMCA, would be to do a notice and notice setup, in which service providers would pass along notices to the user, with an established time period for that user to respond, either by fixing the issue or issuing a counternotice. Then the service provider could decide how to respond, in either taking down the content or leaving it up. Unfortunately, that's not how the current DMCA safe harbors work. The notice-and-takedown provision does not require immediate takedown, but heavily incentivizes it by granting the service provider immunity from liability if they take the content down. This doesn't mean that the service provider is automatically liable if they choose not to take the content down (courts have found service providers to still be protected otherwise), but they can't use the simple and quick process of the safe harbor to get any lawsuits dismissed. Rather they might have to go through the full process of the lawsuit. Thus, some companies immediately take down all requested content in response to a DMCA request, just to give themselves protections under the safe harbor. Many, more reasonable, companies at least do a first-pass review over how legitimate the DMCA notice is, rejecting obviously frivolous ones, but still quickly taking down plenty of content (often mistakenly).

Github, the super popular site for storing software repositories has been hit with more than a few DMCA notices in its time -- in fact, it has a repository publicly listing them all. Just recently, we had noted some controversial ones, including Qualcomm shutting down its own repository and the MPAA taking down Popcorn Time repositories, despite them containing no MPAA copyright covered material.

Github has now made a very interesting move in changing its DMCA process to one that is basically a notice-and-notice policy, and one which also does not create collateral damage for non-infringing forks of projects.

• First, whenever possible, users will have a chance to fix problems before we take content down.
• Second, we will not automatically disable forks in a network based on the takedown of a parent repository unless the takedown notice explicitly includes them.
• Last but not least, we've published a completely revamped DMCA policy as well as a pair of how-to guides for takedown and counter notices to make our process more transparent and easier to understand.

It's that first one that is most interesting to me for a variety of reasons. The company admits that it sort of did this informally in the past, but now it's official policy:

The first change is that from now on we will give you an opportunity, whenever possible, to modify your code before we take it down. Previously, when we blocked access to a Git repository, we had to disable the entire repository. This doesn't make sense when the complaint is only directed at one file (or a few lines of code) in the repository, and the repository owner is perfectly happy to fix the problem.

In practice, our support team would often shuttle messages between the parties to work out a way for them to fix it. That usually worked out well and everyone ended up happier at the end of the day. So we are making it a formal part of our policy, and we are going to do it before we disable the rest of the repository.

It's absolutely true that this seems like a much better overall policy for everyone -- but it's still surprising (if unfortunate that it's surprising) that any company would be willing to take such a step, since, technically it's opening the company up to some amount of greater liability -- and lawyers tend to be averse to any move that may increase a company's legal liability. So, kudos to Github and its lawyers for recognizing that sometimes you have to let in a little legal risk for the good of the overall community.

Filed Under: copyright, dmca, liability, notice and notice, notice and takedown
Companies: github

Leaked TPP IP Chapter Would Lead To Much Greater Online Surveillance... Because Hollywood Still Hates The Internet

from the shameful dept

We already wrote a big piece about the latest leaked copy of the Trans Pacific Partnership (TPP) agreement text. However, there were a few additional areas in the leaked text that deserve further scrutiny, so we'll be having a few more posts. One significant concern is how the TPP is likely to lead to much greater surveillance by ISPs on your online surfing habits -- all in the name of "copyright" of course:

Draft rules under negotiation would impose on Internet service providers a legal obligation to fight against online copyright infringement. This obligation is embodied in several provisions, which would require, for example, ISPs to communicate to their users any supposed infringement committed through their accounts, take down from the Internet information that supposedly infringes on copyright, and collect information that allows identification of users that supposedly have infringed the law.

While the text of the actual agreement sounds like it's just internationalizing the DMCA (already problematic), it's actually worse. Subtle language choices make a big, big difference.

First, the TPP includes provisions that would extend spying obligations not only to entities that provide Internet services, but to “any person,” thus, not only Internet-related companies would be required to enforce the law, but “any person,” whether human or otherwise. Rights holders would likely interpret this obligation as applying to the manager of a free-wifi zone at Starbucks or your favorite neighborhood cafe, to public libraries and schools, as well as to that neighbor of yours who shares her wifi by keeping it accessible and open.

Second, TPP provisions do not seem to limit this spying to the Internet. Instead they refer to online providers, which may extend the scope of the law to other digital networks, such as intranets and private networks. What does this mean? It means that not only ISPs would be spying on you by collecting user data to protect Hollywood’s copyrights, but also other providers of online services, like the private network you use at your workplace, at your university, or even at your kid’s school, even if those networks do not provide actual access to or from the Internet.

Although the TPP states that Internet service providers would not be required by law to “monitor” users, it encourages this practice. Therefore, the TPP would leave open the door for private agreements between copyright holders (such as the Recording Industry Association of America and the Motion Picture Association of America) and Internet companies for enforcing the law against Internet users (for example, see the Center for Copyright Information). This raises concerns about powerful content industry players working together to promote abusive practices to enforce their interests against supposed infringers, since, in order to prevent any liability, online service providers may collaborate with rights holders to enforce copyrights beyond what is required by the law.

It's that last part that is the most troubling. Over the last few years, after Hollywood lost the SOPA fight and realized that legislation was more difficult, it's now seeking these so-called "voluntary" agreements -- even when they're really done by the government with the threat of regulations if an agreement isn't reached. These kinds of campaigns are hardly "voluntary" in reality, and are generally designed to get Hollywood everything it wants without having to through any sort of democratic process. Kind of like trade agreements.

Is it any wonder why the USTR has been so adamant about keeping the details of this agreement a secret?

Filed Under: copyright, infringement, internet, liability, networks, surveillance, tpp, ustr, voluntary agreements

Horrifying 'Rape Scam' Case Leads To Questionable Ruling About Blaming A Website For Failing To Warn Of Rapists

from the cda-230 dept

For many years, we've written about the importance of the so-called "intermediary liability protections" found in Section 230 of the Communications Decency Act (CDA). The basic concept of Section 230 is that it's improper to blame a website for the actions done by users of that website -- noting that to blame the website would create tremendous chilling effects on the internet. However, at times, the courts have chipped away at these protections. Back in 2009, we wrote about a ruling in California in Barnes v. Yahoo in which the court ruled that Yahoo had given up its Section 230 protections after an employee promised to take down some content (the case was sort of an early revenge porn story).

Now, the 9th circuit appeals court is relying on that ruling to reject a Section 230 defense in another case, where the situation is -- without question -- horrible. It involves a site called Model Mayhem, where models and aspiring models can post their modeling profiles. Apparently, a pair of despicable excuses for human beings (and I almost hesitate to call them that much) named Lavont Flanders (who was a former Miami Beach police officer who was apparently fired, but not prosecuted, for soliciting the 13-year old daughter of a fellow cop) and Emerson Callum would troll through a site called Model Mayhem to find aspiring models, convince them to come for an "audition," and then proceed to drug them, rape them, film it and then sell the videos. Everything about this is horrific. I was going to say that I hope the two of them are on their way to rotting in prison for the rest of their lives, but it appears that's already been taken care of. Both have been given life sentences for what they did. The story behind that link has the following tidbit that becomes more important: "State prosecutors initially charged the men in Broward County, but they were freed on bond and continued to prey on women while they were free, prosecutors said."

The case here involves one of the victims of this situation suing Internet Brands, the company that owned Model Mayhem for at least some of the time that this was happening. Again, what she went through is absolutely horrible. But it seems like a massive stretch to blame the site. Internet Brands pointed to Section 230, and the district court dismissed the case against the company. However, the appeals court has now reversed, arguing that Section 230 only applies to certain kinds of intermediary liability -- those which involve treating the intermediary as a "publisher." All other intermediary liability is, apparently, fair game. From there, the issue is whether or not Model Mayhem / Internet Brands had a proactive duty, under California law, to warn users of the site of this particular scam by these individuals. The court notes that the company was aware of what these two guys were doing, but they weren't publishing anything on the site -- merely contacting women who published their own profiles. The site was likely aware of the pair due to that earlier arrest but nowhere does it suggest they knew the two were still out there continuing to take part in this horrific practice.

Either way, the woman claims that Internet Brands should have warned their users, and the court says Section 230 doesn't protect the site from such things (though does not determine whether or not Model Mayhem should have warned users of the site -- that question goes back to the lower court).

In any case, that Internet Brands was in some sense an “intermediary” between Jane Doe and the rapists does not mean that the failure to warn claim treats Internet Brands as the publisher or speaker of user content. True, imposing any tort liability on Internet Brands for its role as an interactive computer service could be said to have a “chilling effect” on the internet, if only because such liability would make operating an internet business marginally more expensive. But such a broad policy argument does not persuade us that the CDA should bar the failure to warn claim. We have already held that the CDA does not declare “a general immunity from liability deriving from third-party content.” Barnes, 570 F.3d at 1100. Congress has not provided an all purpose get-out-of-jail-free card for businesses that publish user content on the internet, though any claims might have a marginal chilling effect on internet publishing businesses. Moreover, the argument that our holding will have a chilling effect presupposes that Jane Doe has alleged a viable failure to warn claim under California law. That question is not before us and remains to be answered.

The woman suing suffered a very real and incredibly horrifying harm. But it's worrisome when the result of it is to chip away at important protections that Congress put in place for intermediaries to protect them from liability from the actions of third parties. The constant efforts to chip away or dismantle Section 230 are already problematic enough. Having a court open up new "holes" in Section 230 like this will only lead to a new series of lawsuits from questionable claimants, seeking to get around Section 230 relying on rulings like this one.

Filed Under: cda 230, emerson callum, intermediary liability, lavont flanders, liability, rape, scam

NBC, Now Owned By Comcast, Once Told FCC It Should Break Net Neutrality To Force ISPs To Be Copyright Cops

from the oh-look-at-that dept

As you surely know by now, NBC Universal is owned by Comcast. And Comcast is one of the major players in today's fight over net neutrality. Comcast, of course, likes to pretend it supports net neutrality, even as it actually supports killing it. It seems worth wondering how the NBC Universal side of the Comcast family is viewing this current debate.

If you don't recall, NBC Universal has actually been vehemently against net neutrality for a long time, in large part because it's afraid that with net neutrality, broadband access providers wouldn't be able to spy on what users were doing, and wouldn't be able to throttle things like BitTorrent, as Comcast famously did in the past. You may even recall that, back in 2008, NBC Universal more or less offered up a deal to the broadband access providers: if the broadband ISPs agreed to become Hollywood copyright cops to spy on users and cut them off for any possible infringement, it would side with them in the fight to get rid of net neutrality.

In fact, in an FCC filing on net neutrality going all the way back to 2007, NBC Universal made it clear that it more or less wanted the FCC to force broadband providers like Comcast into being copyright cops:

What is missing from this debate – and from the Policy Statement and the Commission’s own commentary – is the acknowledgment that a huge and rapidly growing proportion of Internet traffic consists of stolen property and the concomitant recognition that service providers must act to stem the overwhelming use of their broadband facilities for the distribution of that stolen property. While the number of subscribers engaging in such activity is small, the impact on broadband service is enormous. The Commission should make unmistakably clear, as part of its regulations governing broadband industry practices, that broadband service providers have an obligation to use readily available means to prevent the use of their broadband capacity to transfer pirated content, especially when such use represents huge percentages of their capacity and reduces the quality of service to other subscribers. Whether those means consist of relatively low-tech but potentially effective steps such as forwarding notices to customers who have been identified as infringers, or using increasingly sophisticated bandwidth management tools as and when they come online, the obligation to deploy such measures must be explicit.

Now, recognize that many of the same folks in leadership positions at Comcast came from NBC Universal, including the author of that comment to the FCC, Rick Cotton, who was General Counsel of NBC Universal, but last year shifted to a new role, entirely focused on "anti-piracy issues." This is the same Rick Cotton who is famous for all sorts of misleading claims over the years, including telling Congress that piracy hurt the American corn farmer because apparently pirates eat less popcorn when they watch movies (I don't get it either). He was also one of the key driving forces behind SOPA.

And he remains a senior exec at Comcast -- the company that is both trying to kill off any chance at real net neutrality reform and which is famous for one of the first net neutrality "violations" in throttling BitTorrent users. Update: Comcast PR people have told me (somewhat snarkily) that Cotton retired this year, just a few months after the press publicly announced his new role (and while his LinkedIn page still lists him as currently employed at Comcast/NBC Universal.

If the FCC follows through and allows its new rules to be put in place, effectively killing off net neutrality, does anyone want to bet how long it will take Comcast -- driven by folks at NBC Universal like Rick Cotton -- to seize upon the opportunity to "monitor" your traffic and try to "use readily available means to prevent the use of their broadband capacity" for what Comcast/NBC Universal thinks is infringing (whether or not it is)?

Filed Under: copyright, copyright cops, fcc, hollywood, liability, net neutrality, rick cotton, throttling
Companies: comcast, nbc universal