Be Careful What You Wish For In Asking Silicon Valley To Police Speech Online

from the why-would-you? dept

We live in a weird moment right now where any piece -- no matter how misleading or unhinged -- seems to be able to find a publication place so long as it blames basically everything on the big internet companies and demands that they do more (or sometimes less) to stop bad stuff from happening online. There are still a few brave souls out there pointing out how problematic all of this might be, and thankfully the EFF's executive director, Cindy Cohn, has taken to the pages of Wired to explain why asking the internet to stifle speech online could backfire in a really big way. She notes that it's a reasonable emotional reaction to mass murdering assholes posting screeds on 8chan to seek to shut the site down entirely, but that comes with serious costs as well.

The hope—for some it may be a belief—is that eliminating online speech forums will help prevent future violence. This is understandable. Everyone wants to live in a country where they are safe in their local stores, at festivals, and in other public places. The vile ideas driving shooters whose actions have caused unspeakable pain and loss are in plain view on 8chan, and the thought that we could just make them go away has strong appeal.

But this is also a critical moment to look closely at what is being proposed and pay attention to the potential consequences for us all. We all rely on our internet communities for connection, information, and organizing against violence. The same mechanisms used to eliminate online forums hosting objectionable speech are all too often used to silence marginalized voices of people who have important things to say, including those drawing attention to hate and misogyny. Rules prohibiting violence have already taken down Syrian YouTube channels documenting human rights violations, while Facebook discussions by black Americans about racism they have experienced have been removed as hate speech.

She then discusses the two key tools that people have proposed for dealing with such speech online: deplatforming and increasing liability under Section 230 of the Communications Decency Act. Both would have significant costs.

After the 2009 shootings at Fort Hood in Texas, we saw calls to ban forums where Muslims gathered to speak. We’ve seen hate speech prohibitions in companies’ terms of service used to silence conversations among women of color about their experiences being harassed. We’ve seen regulations on violent content result in the erasure of vital documentation of human rights abuses in Egypt and Kashmir, and domestic law enforcement brutality here in the United States. We’ve seen efforts to convince upstream providers to block information about problems with electronic voting machines and actions to protect the environment.

Both strategies also assume that we want to double down on the idea that representatives from private companies—generally underpaid and traumatized content moderation contractors, but also the creators of unmoderated forums like 8chan—should be the primary deciders about what gets to be on the internet. They also assume that there is global agreement about what should be allowed and what should be banned.

Indeed, the very fact that increasing liability under 230 might contradict efforts to deplatform individuals is something that is never discussed by those who support these moves. I know it's no fun to be pointing out that the "easy" solutions people say will solve everything aren't easy and won't solve much at all, but kudos to Cindy for doing so.

Filed Under: cindy cohn, content moderation, deplatforming, free speech, regulations, section 230

Here's Hoping Judge Ignores The Nutty Plaintiff With An Important Case On NSA Surveillance Of Business Records

from the hopefully,-hopefully dept

Many of us were excited, 11 months ago, when District Court Judge Richard Leon ruled that the NSA's bulk collection of phone metadata was unconstitutional. This was the first program revealed via the documents from Ed Snowden, and it involved the US using Section 215 of the PATRIOT Act, approved by the FISA Court with little explanation (until much later) to say that it's okay to request all phone records from Verizon. What had been often mentioned as a brief aside, is the fact that the plaintiff in the case, Larry Klayman is a bit of a conspiracy-theorist nutjob.

That came out loud and clear earlier today during the oral arguments in the appeal (Klayman had tried to go straight to the Supreme Court, which failed, though pretty much everyone expects the case to get back there eventually). Dan Froomkin, over at The Intercept, briefly discusses how Klayman's nutty rantings in the court have the potential to derail the whole thing.

But the lead plaintiff in this case is Larry Klayman, a bombastic and litigious conspiracy theorist who happened to file one of the first post-Snowden lawsuits.

And when the three-judge panel began peppering him to substantiate his claims of standing and harm, Klayman was unable to make a cogent argument. He accused the government of consistently lying and of getting “into people’s underwear.” And he cast himself personally as the victim of government surveillance and dirty tricks, saying his phone made calls he never placed and that a client’s computer had been broken into.

“I can’t talk on the phone anymore,” he complained.

He told the judges they were the last defense against tyranny, and warned them of revolution should they fail.

Riiiiiiiight.

Thankfully, Cindy Cohn from the EFF was also on hand and provided a much more legally relevant and defensible argument:

On the crucial issue of how the information being collected by the NSA differs from the information being collected in the 1979 case of Smith v. Maryland, Cohn provided the key answer that Klayman was incapable of summoning: Its size.

Smith was about one robbery suspect, whose calls were monitored for three days. “This is the untargeted mass collection of the phone calls of millions of people over many years,” Cohn said.

Judge David Sentelle interrupted: “Does it become an invasion because there’s lots of it? Or is a million times nothing still nothing?”

Cohn said American citizens have a reasonable expectation that the government isn’t logging all their phone calls all the time for no specific reason. “There are regular people making everyday phone calls, that are swept up in this.”

There's much more in the actual discussion, but this is really what the case is about. Can the courts continue to take the awful Smith v. Maryland argument, saying that it was okay to get a single phone's records from the phone company without a warrant, and extrapolate it out to mean that the government can demand every phone record of every call. There's still a lot more to go in this process, including a likely rehearing with the full DC Circuit and then the eventual Supreme Court ruling. One just hopes that Klayman's nuttiness doesn't get in the way of this important case.

Filed Under: 4th amendment, 9th circuit, appeals, cindy cohn, larry klayman, nsa, phone records, richard leon, section 215, smith v. maryland, surveillance, third party doctrine