Facebook And Google Finally Take First Steps On Road To Transparency About Content Moderation

from the but-more-work-is-needed dept

As internet platforms are aggressively expanding their “moderation” of problematic content in response to increased pressure from policymakers and the public, how can we best hold them accountable and make sure that these private censorship regimes are fair, proportionate, accurate and unbiased?

As we wrote in our last piece for Techdirt at the beginning of the year, right before the first Content Moderation and Removal at Scale Conference in Santa Clara, there is a dire need for meaningful transparency and accountability around content moderation efforts in order to ensure that the new rulers of our virtual public squares–practically governments in their own right, with billions of citizens–are using their power to moderate speech responsibly. This need has only grown as the pressure on Facebookistan and Googledom to deal with the extremists, white supremacists, and fake news operations on their platforms has also grown, and as questions about whether they are abusing their power by not taking down enough content–or by taking down too much–have proliferated.

This trend was most evident in the recent Congressional hearings prompted by the Cambridge Analytica scandal, where some lawmakers rebuked Facebook CEO Mark Zuckerberg for not doing enough to keep certain content off the platform, while others raised concerns that Facebook had demonstrated political bias against the right when determining what content to take down. Similar concerns were voiced by Republicans at today’s hearing in the House Judiciary Committee focused on examining major internet platforms’ content moderation practices (despite the fact that claims of anti-conservative bias having been thoroughly debunked). Such concerns are not limited to the right wing, though–charges of racially-biased censorship have also been levelled from the left.

In response to these growing pressures–and in no small part thanks to years of consistent demands from free expression advocates–Google and Facebook this week both took major strides towards “doing the right thing” and promoting greater transparency around their content moderation practices, in ways that mirror what we were advocating for in our previous article.

First, on Monday afternoon, Google released the industry’s first detailed transparency report focused on content moderation, giving statistics about YouTube content removals based on violation of the service’s Community Guidelines. Among other things, the report highlights the total number of videos removed in the last quarter of 2017 (a staggering 8,284,039 videos), the percentage of videos flagged by human users versus YouTube’s automated flagging systems (the robots flagged four times as many videos as the humans), and a percentage breakdown of the different reasons human flaggers had flagged content (whether it was spam, sexual content, hate speech, terrorist content, etc.) This is the first time any company has published this sort of data at this level of detail–and now that YouTube has taken the first step, it certainly won’t be the last.

Soon after YouTube’s trailblazing transparency report, on Tuesday morning, Facebook made a trailblazing announcement of its own. The company published a much more comprehensive version of its Community Standards, including the detailed internal guidelines the company uses to make moderation decisions, and highlighting the “spirit” of their content policies in order to generate greater understanding about why and how the company removes content. In addition, for the first time, the company is giving users the ability to appeal takedown decisions made on individual posts. Posts that are appealed will be reviewed by a human moderator on the company’s appeals team within 24 hours. Prior to this announcement, users could appeal the removal of pages and groups, but the introduction of this process for individual posts is a valuable step towards providing users with greater agency over their content and more engagement in the moderation process.

Taken together, these moves have sharply increased both the quantitative transparency (Google’s numbers) and the qualitative transparency (Facebook’s explanations) around content takedowns, while also improving due process around those takedowns (Facebook’s new appeals). These are both critical first steps, but there is definitely more to be done. For example, although YouTube published a significant amount of data related to the types of objectionable content removed as a result of human flaggers, it does not produce similar data for content flagged by automated flagging systems, which is especially concerning since automated systems flagged the vast majority of objectionable content. Meanwhile, although Facebook’s introduction of an appeals process is a valuable step towards providing users with stronger due process, it currently only applies to hate speech, graphic violence, and nudity/sexual activity, which have been the most controversial categories of objectionable content. In order for this process to be truly impactful, it needs to apply to all forms of content that are being taken down–and the process needs to give impacted users a way to argue their case for why their content should stay up.

Going forward, Facebook and Google also need to take a page out of each other’s books. Like Google, Facebook needs to start reporting quantitative data on its takedowns and how they have impacted different categories of objectionable content, not only for itself but for its other products like Whatsapp and Instagram. Similarly, Google needs to provide users with greater qualitative insight into the guidelines that impact content takedowns, just as Facebook has. They should also expand their takedown reporting to include other Google products and services such as Google+ and the Google Play store. Doing so could help pressure Apple to similarly report on takedowns in the Apple Store, therefore further expanding transparency reporting in this space.

And that’s the real value of these new steps, beyond the transparency itself: Google and Facebook’s new efforts will hopefully push the rest of the industry to compete with them on transparency. Google’s first innovations around transparency reporting on government surveillance demands nearly a decade ago helped set the stage for a domino effect of widespread adoption once the Snowden surveillance scandal broke, as detailed in this timeline and case study on the spread of that reporting practice. In this political moment of “techlash” that has now been turbo-charged by the Cambridge Analytica scandal, the adoption of strong content moderation transparency practices may happen even faster–but only if policymakers and advocates keep demanding it. That includes voices that have been pressing on this issue for years such as the ACLU of Northern California, the Electronic Frontier Foundation, our own organization the Open Technology Institute, and the Ranking Digital Rights project (which just yesterday released its third annual ranking of how well tech companies’ are protecting users’ human rights. Spoiler alert: they’re not doing so great). And since we’re catching this practice at its beginning, perhaps with the right pressure we can not only get all the companies to issue reports but also get them to standardize their reporting formats. Otherwise we may end up with the same crazy quilt of formats that we have in other areas of transparency reporting, which makes it that much harder to meaningfully compare and combine data.

More than pressure, though, we’ll also need continued dialogue with the companies, to better understand how their content moderation and reporting processes do and don’t work, what their biggest challenges are when moderating at scale, and where they think the technology and practice of content moderation and reporting is heading. That’s why our organization along with many others is co-hosting the second Content Moderation at Scale Conference in Washington, DC on May 7, where representatives from a wide range of tech companies both big and small will be talking in detail and on the record about their internal content moderation processes (the conference will be livestreamed and Techdirt's Mike Masnick will be co-running a session on some of the challenges of content moderation).

We may see even more dominoes fall at that conference, with fresh new announcements about increased transparency and due process around content moderation on even more platforms. Let’s hope so, because internet users deserve to know more about exactly when and how their online expression is censored.

Filed Under: appeals process, content moderation, due process, takedowns, transparency

Lavabit Loses Its Appeal For Mucking Up Basic Procedural Issues Early On

from the unfortunate-but-messy dept

This won't come as a huge surprise, but Ladar Levison and Lavabit have now lost their appeal on whether or not they were in contempt for failing to compromise the security of every one of Lavabit's customers in complying with the DOJ's demands to get access to who Ed Snowden had been emailing. The ruling does a decent job explaining the history of the case, which also details some of the (many, many) procedural mistakes that Lavabit made along the way, which made it a lot less likely it would succeed here. Let this be a massive reminder that, if you're dealing with this kind of stuff, getting a good lawyer on your side immediately is important. Unfortunately, the procedural oddities effectively preclude the court even bothering with the much bigger and important question of whether or not a basic pen register demand requires a company to give up its private keys. As the court details, the problem seems to be how Lavabit went about the legal process here:

In the district court, Lavabit failed to challenge the statutory authority for the Pen/Trap Order, or the order itself, in any way. Yet on appeal, Lavabit suggests that the district court’s demand for the encryption keys required more assistance from it than the Pen/Trap Statute requires. Lavabit never mentioned or alluded to the Pen/Trap Statute below, much less the district court’s authority to act under that statute. In fact, with the possible exception of an undue burden argument directed at the seizure warrant, Lavabit never challenged the district court’s authority to act under either the Pen/Trap Statute or the SCA.

The court basically says that because Lavabit mucked up the process, the appeal is going to fail. It further rejects the claim that Lavabit did, in fact, challenge the Pen/Trap order when Levison objected to turning over his keys. The court notes that such a claim is a stretch.

In making his statement against turning over the encryption keys to the Government, Levison offered only a one-sentence remark: “I have only ever objected to turning over the SSL keys because that would compromise all of the secure communications in and out of my network, including my own administrative traffic.” (J.A. 42.) This statement -- which we recite here verbatim -- constituted the sum total of the only objection that Lavabit ever raised to the turnover of the keys under the Pen/Trap Order. We cannot refashion this vague statement of personal preference into anything remotely close to the argument that Lavabit now raises on appeal: a statutory-text-based challenge to the district court’s fundamental authority under the Pen/Trap Statute. Levison’s statement to the district court simply reflected his personal angst over complying with the Pen/Trap Order, not his present appellate argument that questions whether the district court possessed the authority to act at all.

Levison represented himself pro se at the beginning of the case (adding to the mess of procedural problems), and while his legal team tries to use that as a reason why the court should forgive some of the procedural mistakes, the court rejects that as well (even noting that, as a limited liability company, Lavabit shouldn't have been allowed to proceed pro se in the first place).

The hail mary attempt in the case was to argue that because the underlying issues are of "immense public concern" (and they are) that the court should ignore the procedural mistakes. The court flatly rejects that notion:

Finally, Lavabit proposes that we hear its challenge to the Pen/Trap Order because Lavabit views the case as a matter of “immense public concern.” (Reply Br. 6.) Yet there exists a perhaps greater “public interest in bringing litigation to an end after fair opportunity has been afforded to present all issues of law and fact.” United States v. Atkinson, 297 U.S. 157, 159 (1936). And exhuming forfeited arguments when they involve matters of “public concern” would present practical difficulties. For one thing, identifying cases of a “public concern” and “non-public concern” –- divorced from any other consideration –- is a tricky task governed by no objective standards..... For another thing, if an issue is of public concern, that concern is likely more reason to avoid deciding it from a less-than-fully litigated record....

Accordingly, we decline to hear Lavabit’s new arguments merely because Lavabit believes them to be important.

This is unfortunate on many levels, because it's not just Lavabit that believes these issues to be of immense public concern. Either way, this mess of a case should be a reminder that, especially when dealing with the government, it's important to get good lawyers on your side from the very beginning.

Filed Under: 4th amendment, appeals process, doj, ladar levison, pen register orders, pen/trap, private keys
Companies: lavabit

Google, Microsoft And Other Ad Networks Agree To 'Best Practices' To Stop Ads From Appearing On 'Pirate' Sites

from the the-details-matter dept

This has been rumored for ages, and the White House has certainly been pushing for this almost non-stop for years, but in a similar vein to the ISPs and the RIAA/MPAA coming to a "voluntary agreement" to implement a six strikes policy, the major online ad networks, led by the Internet Advertising Bureau (IAB) along with Google, Microsoft, Yahoo and AOL (and, yes, with the White House) have come to an agreement to stop their ads from appearing on "rogue" sites that are engaged in copyright infringement or selling counterfeit goods via a series of "best practices." The agreement says that the various ad networks who are participating will strive to keep their ads off of sites "that are principally dedicated to selling counterfeit goods or engaging in copyright piracy and have no substantial non-infringing uses."

I have some concerns about this, as I'll discuss below, but on the whole it appears that there's actually some good to come out of this. First off, it's worth noting that all of these guys already have terms of service that bar the use of their ads on sites that primarily engage in such things. While various tech industry haters still tend to believe otherwise, the tech industry has been pretty good at keeping their ads directly away from such sites for years. The ads that tend to get on those sites come from tiny third party ad networks that no one has heard of. In fact, some of the "evidence" against Megaupload was that from very early on, Google kicked it out of its ad program.

Another sign that this agreement probably isn't that bad: the MPAA has already put out a statement about how they hate it, saying that it's not enough. Chris Dodd specifically argues that nothing is going to be enough until everyone else does the copyright holders' job for them, and proactively polices the internet. The fact that no one but the copyright holder can know for certain if something is infringing is not even allowed to enter the discussion in the corrupt minds of the MPAA.

In this case, it appears that this new agreement involves something of a more formalized notice and (possible) takedown system. Copyright holders can submit a complaint to each ad network (individually, not to some central authority), and then the ad network gets to decide how it handles the notice -- but, under the best practices, they will strive to keep their ads from appearing on such sites. Since this is just a voluntary agreement, unlike, say, the DMCA, there's no automatic liability shifting in refusing to pull the ads -- and the agreement makes it clear that the best practices themselves do not establish liability, nor do they create a duty to proactively monitor (though, I could see how copyright holders might later try to raise that issue).

The good thing about this program is that it appears those who worked on it clearly recognize that certain copyright holders may be a little over eager in claiming certain sites are "pirate" sites when they might not be. So the program is designed to be more transparent and to include the clear ability for a site to appeal such a decision and get the ad networks to reconsider. In some ways, this is a step forward from the way it was before, in which Google or others might just kick you out of the program with almost no communication and absolutely no right of appeal. In fact, Google is somewhat infamous for its big white monolithic response to kicking people out of its ad network: basically just telling them "you've violated our terms" with no explanation, no way to find out more, and no way to appeal. Adding an actual appeals process is a step up.

That said, there are still two key concerns here. The first is that even with an appeals process and various safeguards, it's quite likely that legitimate sites that have significant non-infringing purposes will still get caught up in this. We've seen too many false takedowns, false attacks and the like for that not to happen. And even with an appeals process, losing your entire ad network for a period of time can completely sink a small business (and, any site making money on these kinds of ad networks is, by definition, a small business -- because none of these ad networks pay out very much to individual sites).

The second concern is a bigger one: which is that if you look at the history of some of the most important innovations that have helped the content industry grow, they almost always start out as what those content industries deemed "principally dedicated to infringing activity." In the early days of radio, cable TV, VCRs, DVRs, mp3 players, YouTube, etc... they were all attacked as being hotbeds of infringement. Yet, as they grew in popularity, business models developed that helped the content industry tremendously. As I've pointed out in the past, it was only four years after Jack Valenti declared that the VCR was the "Boston Strangler" of the movie business that the home video business surpassed the box office in revenue for Hollywood. Yet, if we allow a system where the copyright holders are able to simply starve these new businesses completely before they've had a chance to develop and mature, I worry that we miss the next VCR, the next DVR, the next mp3 player, the next YouTube -- and whatever tool that comes next that allows content creators to do an even better job connecting with fans, creating new works, distributing new works, promoting those works and eventually monetizing those works.

It's easy to simply try to label all new upstarts as "evil" and kill them off, but history has shown that's generally not a very good idea. The reason those upstarts are successful is not that they enable infringement, but rather that they enable something new and useful that people want and like. The real opportunity is in figuring out ways for content creators to use that to their advantage -- and I fear that programs like this make it easier to simply snuff them out too early.

That said, if there needs to be such a program, this one appears to be the least destructive approach. It doesn't create liability or a proactive duty to police the internet. It allows the networks to make the final call on what do with complaints. It gives the accused sites the ability to appeal whatever decisions are made. Either way, I would imagine that the MPAA and the RIAA already have their incredibly long lists of sites ready and are submitting them everywhere they can... and within a few weeks we'll watch them issue statements about how the new program isn't working and how more needs to be done.

Filed Under: ad networks, appeals process, copyright, copyright infringement, counterfeiting, notice and takedown, piracy, white house
Companies: aol, google, iab, microsoft, mpaa, yahoo