Good News From The EU For A Change: A Strong Directive To Protect Whistleblowers

from the time-to-get-leaking dept

A lot of bad stuff has been coming out of the EU lately, notably the awful Copyright Directive with its upload filters. So it makes a pleasant change to report on the passing of strong legislation to protect whistleblowers revealing breaches of EU law, a move which the Pirate MEP Julia Reda describes as "One of the greatest successes of this mandate!". Its scope is wide. Areas covered include public procurement, financial services, money laundering and terrorist financing, product safety, transport safety, environmental protection, nuclear safety, food and feed safety, animal health and welfare, public health, consumer protection, and -- of particular interest to Techdirt readers -- privacy, data protection and security of networks and information systems. Two key components of the new directive are "safe reporting channels" and "safeguards against retaliation", as the European Parliament's press release explains:

To ensure potential whistle-blowers remain safe and that the information disclosed remains confidential, the new rules allow them to disclose information either internally to the legal entity concerned or directly to competent national authorities, as well as to relevant EU institutions, bodies, offices and agencies.

In cases where no appropriate action was taken in response to the whistle-blower's initial report, or if they believe there is an imminent danger to the public interest or a risk of retaliation, the reporting person will still be protected if they choose to disclose information publicly.

The law explicitly prohibits reprisals and introduces safeguards to prevent the whistle-blower from being suspended, demoted and intimidated or facing other forms of retaliation. Those assisting whistle-blowers, such as facilitators, colleagues, relatives are also protected.

Member states must ensure whistle-blowers have access to comprehensive and independent information and advice on available procedures and remedies free-of-charge, as well as legal aid during proceedings. During legal proceedings, those reporting may also receive financial and psychological support.

There is now one final vote by EU ministers, expected to proceed without the drama that accompanied the similar vote for the Copyright Directive. Once passed, there will be a two-year period during which EU Member States need to implement the directive in their national legislation.

The general consensus among activists in the digital sphere seems to be that the new directive is probably as good as it could be given the past resistance of some governments to the idea of protecting those who reveal their wrongdoing. It is particularly welcome against the background of the Copyright Directive's upload filters, which will create a convenient mechanism on the main Internet services for blocking documents obtained by whistleblowers. What we need now are the creation of more online sites that are not subject to the Copyright Directive -- because they are not for profit, for example -- willing to host material from whistleblowers encouraged to act by the legal protection afforded by the new EU directive.

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Filed Under: eu, protections, transparency, whistleblowers

Lawyer Wants To Wipe Out Anonymous Speech If It's Critical Of Someone

from the promoting-anti-social-behavior dept

Lawyer Peter Baugher recently wrote an editorial piece for the Chicago Tribune which rehashes a bunch of really bad arguments in an attempt to decimate the First Amendment by effectively removing anonymity online. Every so often we hear proposals like this. People get upset about something written online by someone who is anonymous, and they suddenly decide that anonymity itself is the problem -- not recognizing that anonymity is actually protected by the First Amendment. Baugher mentions the famous cases of Ken Zeran and the more recent AutoAdmit case. These are the standard cases used by those who hate (and misunderstand) the protections that Section 230 of the CDA provides.

Of course, both seem to be somewhat exaggerated, in that the key issue is about who should be liable, and what they should be liable for. Critics of Section 230 use both of these cases in a vague sort of way that says, "weren't they just awful? something must be done!" But they fail to take into consideration the amount of actual harm in both of those cases, as well as whether or not their proposed solutions will actually help. Baugher even seems to recognize this later in his writeup, in which he notes that opinion is not defamation. And yet, he seems to assume that it should still be illegal if someone has a bad opinion of you, because it "encourages anti-social behavior."

Baugher's solution is to say that if you are anonymous, anyone should be able to identify you or have your content removed:

We need a new legislative approach. The absolute immunity enjoyed by online service providers needs to be qualified. At the request of a user, service providers should be required to give anonymous posters a firm choice: agree to reveal who they are (to accept responsibility for their posts in their own names) or their posts will be taken down.

Through this simple mechanism, an alleged victim can either have the abusive information removed or discover the identity of the harasser.

I can't think of a worse solution. Anonymous speech is protected by the First Amendment. If the content is defamatory, there are mechanisms to reveal the poster, but if it's simply mean, well, the First Amendment says that's allowed. That's the nature of living in a free and open society that believes in the right to free speech. You won't like all of that speech.

Sometimes people have very good reasons for criticizing someone anonymously as well. What if that person is in a position of power over them? Letting anyone reveal who is making mean comments or to force their content down would create an astounding chilling effect on the ability to criticize anyone in power. I can't see how such a law would pass basic First Amendment scrutiny.

As for why this is a big deal to Baugher, someone in the comments on his article anonymously pointed out that Baugher has an (undisclosed) stake in all of this. His daughter, who very briefly made a name for herself in the "web 2.0" world for her own self-promotion, was mocked on a few blogs that nobody probably read, and Baugher went after them with legal threats and cease-and-desists, until many of them were taken down. Apparently, Baugher doesn't like his daughter being mocked by some anonymous critics, and thus, we should take away important First Amendment protections. I recognize the desire to protect ones own children, but we shouldn't let such emotional responses get in the way of important First Amendment rights.

Filed Under: criticism, first amendment, free speech, peter baugher, protections, section 230

In The End, Secret Hold On Whistleblower Protection Narrowed Down To Two Senators

from the who-will-blow-the-final-whistle dept

Back in January, we noted the somewhat ironic fact that a US Senator had put a "secret hold" on a bill to protect government whistleblowers. We wondered if someone would blow the whistle and out that Senator. Thankfully, the folks from On the Media stepped up, and set up a project to find out who put that secret hold on the bill. Last we had checked in, they had narrowed it down to three possible Senators: Jon Kyl, Jeff Sessions and James Risch. Since then, Risch said he didn't put the hold on, leaving just Kyl and Sessions refusing to speak. Now that it's been narrowed down to just two, On the Media has decided to end the project, but is happy about the results. The campaign served to raise two key issues:

The Government Accountability Project has let us know that this project has had the two-pronged effect in the Senate of making Senators more hesitant to use the secret hold, and bringing new attention to the Whistleblower Protection Enhancement Act, which is expected to be reintroduced in the Senate shortly.

This is good news. While there actually are some serious problems with the Whistleblower Protection Enhancement Act as it was written last time around, that's still no excuse for anyone to put a "secret" hold on it. If Senators are going to block a bill, they should be willing to at least come out and admit that it was them, let alone explain their reasons for doing so.

Filed Under: jeff sessions, john kyl, protections, secret holds, senate, whistleblower

Down To Just 3 Senators Who Refuse To Say If They Anonymously Killed Whistleblower Bill

from the counting-down dept

A few weeks ago, we noted that WNYC's On the Media's attempt to out the Senator who put an anonymous block on a bill to protect whistleblowers, had narrowed down the list to just five Senators. Since then, two of the five remaining Senators -- David Vitter and Mitch McConnell have both said that they did not put the secret hold on the bill. So that leaves just three Senators, each of whom have been contacted multiple times and refuse to say. Here's OTM's summary:

Jon Kyl (AZ)
730 HART SENATE OFFICE BUILDING WASHINGTON DC 20510 (202) 224-4521

Jon Kyl Website Contact Page

Number of times contacted: 18

Notes: 3-2-2011 – Have yet to make contact with Senator Kyl’s Press Secretary Ryan Patmintra. Several messages have been left with the office. A caller spoke to a staffer named Nat on 1-18-2011 who didn’t think Sen. Kyl was responsible, but could not confirm. Since 2-17-2011, three constituents have received the following letter in reply to inquiries about his role in killing the Whistleblower Protection Enhancement Act: “Thank you for contacting me about the Whistleblower Protection Enhancement Act (S.372) . The Senate passed S. 372 on Dec 14, 2010 and the House passed a different version of the legislation on Dec 22. With only hours left in the session, the Senate did not have sufficient time to review the House’s changes and reconcile the differences between the two bills. “

 

---

 

Jeff Sessions (AL)
335 RUSSELL SENATE OFFICE BUILDING WASHINGTON DC 20510 (202) 224-4124

Jeff Sessions Website Contact Page

Number of times contacted: 15

Notes: 3-2-2011 – Jeff Sessions aide Caroline explained to caller on 1-19-2011 that anonymous holds are 'anonymous' and that he is 'very private.' Subsequent calls have gotten similar responses. Have yet to get a response or make contact with Press Secretary Sarah Haley.

 

---

 

James Risch (ID)
483 RUSSELL SENATE OFFICE BUILDING WASHINGTON DC 20510 (202) 224-2752

James Risch Website Contact Page

Number of times contacted: 14

Notes: 3-2-2011 – Press Secretary Kyle Hines, as well as other staffers have repeatedly told callers that the Senator does not comment on Secret Holds. Hines has said "That's his policy - that's his right" "He just doesn't comment on them." He told caller he would follow up with the Senator on 2-22-2011, and got back to the caller to confirm that the Senator would not comment.

3-4-2011 - Senator Risch's office continues to refuse comment on the secret hold. Brad Hoaglun, Senator Risch's spokesman sent the following email: "Senator Risch's policy has been to not comment secret holds. Although the rules have changed for this Congress he is still holding firm to his policy as it pertains to the last Congress."

There are some claims that Senator Kyl indirectly admitted that he put the hold on the bill, but that may be reading too much into his statements. That's based on the statement (also included above) where he did suggest that there wasn't "sufficient time to review" the House's changes to the bill. Either way, supporters of the bill have pointed out that whether or not this is an admission, it's a completely bogus reason:

Senator Kyl's response to Arizonans, without further explanation, is woefully disingenuous, since the Senator had more than sufficient time to review the content of the bill. In fact, his office had approved the remaining legislation just weeks prior to this final vote.

No matter what, it appears that sooner or later it's going to be revealed who put the secret hold on the bill.

Filed Under: james risch, jeff sessions, john kyl, protections, secret holds, senate, whistleblower

Once Again, Helping A User Doesn't Take Away Section 230 Protections

from the a-little-reminder dept

One thing we often hear from folks is that Section 230 safe harbors only apply to service providers who do not actively participate in the services they provide. That is, some of our commenters insist that if you "moderate" or if you, as a service provider, are actively involved in what a user does, then Section 230 safe harbors do not apply. Yet, time and time again, courts have found this not to be the case. In the latest such example, Eric Goldman points us to a lawsuit filed against an online auction site, Proxibid, which apparently is similar to eBay, but the company is somewhat more involved in the auctions. That is, it reviews the auctioneers before letting them use the site, and in this particular case, a Proxibid employee apparently helped the company doing the selling unilaterally extend an auction. A bidder in that auction was upset about the unilateral extension, as well as the belief that the selling company was issuing shill bids to drive up the price. He sued both the seller and Proxiweb, and tried to claim that Proxiweb was liable, because its actions made Section 230's safe harbors inapplicable.

Not so, according to the court:

Plaintiffs have essentially asserted that Proxibid is liable to them in tort for tortious interference with a contract, aiding and abetting a breach of a fiduciary duty, negligence, unfair trade practices, and conversion because Proxibid allegedly helped Danhauer deprive Plaintiffs of the items for which they were the highest bidder in the auction at 4:00 a.m. Plaintiffs' sole bases for maintaining these claims against Proxibid arise from Proxibid's facilitation of Danhauer's reopening of the auction and Proxibid's alleged failure to thwart Danhauer's efforts to bid in its own auction in violation of the website rules. Plaintiffs do not dispute the fact that Proxibid is a website service provider, much like Ebay. Plaintiffs also do not dispute that Danhauer was responsible for conducting all aspects of the auction. There is no evidence that Proxibid posted any information or conducted any actions other than those provided by or at the direction of Danhauer. In this case, Proxibid is nothing more than an interactive computer service provider and cannot be held liable for the information and actions originating from Danhauer. Accordingly, Proxibid is also entitled to the immunity provided under the CDA, and Plaintiffs may not pursue the tort claims in their Complaint against Proxibid.

Yet another reminder that Section 230 safe harbors still apply, even if the service provider is somewhat more involved. There are, obviously, some limits to that involvement, but if it's merely moderating, or following the requests of users, it appears that the safe harbors remain -- as they should.

Filed Under: help, protections, section 230

Copyright Is About Incentives, Not Protection

from the net-benefits dept

Whenever we discuss the issue of copyrights and bring up the fact that copyright is not a welfare system to protect creators, people get upset with us. There seems to be this false assumption that copyrights (and patents) are designed for the sake of protecting the creator of content. That's not true and it's never been true. From the very earliest debates about the concept of intellectual property in the US, it has always been about creating incentives for innovation -- or, as the Constitution so eloquently puts it: "to promote the progress of science and useful arts." In thinking over the various debates over copyright, it seems to come down to this particular issue over and over again. Those who are focused on the original purpose of copyrights recognize the problems with the copyright system and are interested in fixing them. Those who believe that the purpose of copyrights is to "protect" don't have a problem with the way things are, or with the idea of strengthening copyrights, even if they weaken the actual market and are a net negative on society.

This is quite clearly indicated in a great article by Julian Sanchez arguing against extending copyright protections to the fashion industry (found via Tim Lee). The question of extending copyrights to the fashion industry has been discussed at length before, but a few key points in Sanchez's piece highlight this split in thinking about the issue. He notes, as many others have, that the industry is constantly innovating and is quite healthy -- which is why the idea that new "incentives" are needed seems laughable. However, if you view things from the position that copyright is about protecting, then it's a different story. Sanchez notes that while individual designers may be harmed, it's only helped the overall industry. From that standpoint, if you believe in protectionism, then you say these new laws are needed to "protect" those who are harmed -- ignoring the greater harm caused to the rest of the industry.

The history of economics is littered with examples of why protectionism is rarely, if ever, a reasonable policy. It tends to backfire badly, in part because it takes away many of the incentives for competition and innovation. In protecting one area, you are inevitably harming another. Indeed, studies have shown that innovation in the fashion industry is often because of the rampant copying, rather than in spite of it. That's the way you want markets to work -- where competition drives innovation by forcing companies to keep innovating to leapfrog each other. Sanchez quotes legal scholar Kal Raustiala to make the point: "When a successful restaurant opens up on a street that's never had a restaurant before, there's a way in which the second business is parasitic on the first. But in the United States, we call that capitalism and competition."

Filed Under: copyright, fashion industry, incentives, protections