Three Years Later: 1st Amendment Challenge Over DMCA's Anti-Circumvention Provisions Can Move Forward

from the took-'em-long-enough dept

Almost exactly three years ago we wrote about how well known computer security professor Matthew Green and famed hardware hacker Bunnie Huang had teamed up with EFF and the law firm Wilson Sonsini to file a fascinating 1st Amendment challenge to the DMCA's Section 1201. 1201 is the so-called "anti-circumvention" or digital locks provision of the DMCA, that says that it's infringing to "manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof" that is designed to "circumvent" DRM or other "technological protection measures." Basically, if there's a digital lock on something -- doing anything to get around it (or to help others get around it) is potentially a copyright violation even if (and this is important) the purpose and result of circumventing the DRM has nothing to do with infringing on copyright.

Even Congress knew that this part of the law was crazy when they passed it. It knew that this would lead to all sorts of perfectly reasonable activities suddenly being declared infringing -- so it came up with a really annoying hack to deal with that. A triennial review, where every three years everyone could go beg the Copyright Office and the Librarian of Congress to grant categories of exemptions from Section 1201. Those exemptions only last for three years, so even if you get one, you need to keep applying.

The lawsuit took an interesting approach to challenging 1201. Noting that the Supreme Court has long held that fair use is a necessary safety valve to make copyright compatible with the 1st Amendment, they noted that 1201 does not allow fair use as a defense. And if it's true that fair use is necessary to make copyright compliant with the 1st Amendment, then that should mean that 1201 is not constitutional.

The lawsuit has more or less sat in lawsuit purgatory for nearly three years when the court finally ruled that the case can move forward... in part. In a detailed 61-page opinion the court allowed some claims to move forward while dismissing other ones. It's a victory that the case is moving forward, but among the dismissed claims were the general challenge to the constitutionality of 1201. That's disappointing.

Green and Huang argued that 1201 violated their 1st Amendment rights, because the very threat of violating 1201 caused them to avoid working on various projects -- and those projects were expressive in nature. The court buys that argument -- and says that they have standing to make claims that their own expression was stifled by 1201 and the whole triennial review process. The DOJ argued that they hadn't shown any actual injury, but the court points out that's ridiculous:

First, plaintiffs have sufficiently alleged that their proposed course of conduct is arguably proscribed by the DMCA. With regard to section 1201(a)(1)(A)’s circumvention prohibition, Dr. Green has alleged that he plans to circumvent TPMs for purposes of his academic research... and Mr. Huang and Alphamax have alleged that they plan to circumvent TPMs to create the NeTVCR... With regard to section 1201(a)(2)’s trafficking prohibition, Dr. Green has sufficiently alleged that he plans to include “detailed information regarding how to circumvent security systems” in a book about his research, and he has indicated that the “detailed information” will include computer code.... (“I am now writing an academic book . . . . I would like to include examples of code capable of bypassing security measures, for readers to learn from.”).... And Mr. Huang and Alphamax have alleged that they intend to disseminate “information about how to build NeTVCR,”... which permits the reasonable inference that they will disseminate the technological know-how and computer code required to circumvent the TPMs that bar access to HDMI signals.... Accordingly, plaintiffs have put forth a sufficiently “credible statement of intent to engage in violative conduct.”

So, that's good.

Also nice is that the court explicitly recognizes that "code is speech."

The Court, as do defendants... agrees with plaintiffs that the DMCA and its triennial rulemaking process burden the use and dissemination of computer code, thereby implicating the First Amendment. Although the question has not been addressed by the D.C. Circuit, as other courts have explained, code “at some level contains expression, thus implicating the First Amendment.”... Code is speech precisely because, like a recipe or a musical score, it has the capacity to convey information to a human.

However, the court rejects the straight up Constitutional challenge that 1201 itself is over-broad.

The Court is not persuaded that plaintiffs have alleged facts sufficient to state a claim that DMCA provisions are unconstitutionally overbroad because they “have failed to identify any significant difference” between their claim that the DMCA provisions are invalid on overbreadth grounds and their claim that those provisions are unconstitutional when applied to their proposed course of conduct.... Plaintiffs’ argument in both scenarios is that fair use is constitutionally required and that the DMCA inhibits fair use rights and thus is unconstitutional.... Plaintiffs allege a number of potential fair uses that the DMCA burdens because the Librarian denied exemptions requested by third parties in the 2015 triennial rulemaking process.... Plaintiffs’ as-applied claims, however, arise out of the denials of exemptions either they requested, or that would have covered their conduct.... Plaintiffs have not alleged that the DMCA “will have any different impact on third parties’ interests in free speech than it has on” their own. (“[W]hen, as here, the plaintiffs are themselves engaged in protected activity—when the challenged statute would have no greater impact upon the rights of nonparties than it would have upon the rights of the parties before the Court—there is no need to employ a traditional overbreadth analysis.”). The Court therefore need not reach the question of whether the “DMCA’s anti-circumvention and antitrafficking provisions are plainly legitimate in the vast majority of applications.”

In other words, the case can and should focus on the direct impact on Green and Huang based on what they were trying to do -- and the claims failed (in the court's opinion) to make a clear case how the statute itself was over-broad and unconstitutional. That at least leaves open the possibility of other cases making a better argument on that front.

It also rejects the claim that the Librarian of Congress violates the 1st Amendment in failing to grant certain exemptions.

The Court is not persuaded that plaintiffs have sufficiently alleged facts to state a claim that the exemption rulemaking process is an unconstitutional speech-licensing regime because plaintiffs have not alleged that the rulemaking process results in censorship through “suppressing disfavored speech or disliked speakers,”

Indeed, the court then claims that the DMCA 1201 triennial review process is not "content-based" and therefore it's not violating the 1st Amendment.

Plaintiffs have not alleged facts indicating that the rulemaking defendants’ decision of whether to grant exemptions in the 2015 rulemaking process was based on the content of what those who sought exemptions wanted to say, their viewpoint, or who they are.... The allegations here are therefore entirely distinguishable from speech licensing regimes where the scheme created a prior restraint based on the content of what the speaker wanted to express.

So, all in all a mixed bag. The case is still worth watching and could lead to some interesting rulings, but the bigger attempt to have the entire law declared unconstitutional seems to have hit a dead end.

Filed Under: 1201, bunnie huang, copyright, dmca, dmca 1201, fair use, free speech, matthew green

Germany Cashes Out, Hits Facebook With Fines For Failing To Comply With Its Ultra-Vague 'Hate Speech' Law

from the WITHDRAW-CHECK-BALANCE-WITHDRAW-AGAIN dept

The German government is finally getting around to fining social media companies for violating its absurd "hate speech" law. The law, which took effect January 1, 2018, wasn't even able to make it a week without causing collateral damage.

Unable to construct a machine capable of killing fascists, the German parliament built one that kills satire. Shortly, after it took effect, the hate speech law took down tweets from a long-running German satirical magazine. More debacles followed -- so many that the German equivalent of the alt-right was able to score political points on government censorship, even as they called for government censorship in the other direction.

The new law turned social media companies into ATMs with its demand that something as nebulous as "hate speech" be removed with extreme haste lest its principals and moderation teams be fined personally for stuff German assholes posted to the internet.

It's time to cash out.

Facebook has been slapped with a fine of over $2 million by Germany for “under reporting” complaints it receives about alleged “illegal” online content.

Whoops. I guess that's the sort of thing that happens when a.) the law is uber-vague about what constitutes "hate speech" and b.) gives you only 24 hours to do something about it. This is the main complaint by Facebook. The law "lacks clarity." Nevertheless, demands for something to be done have been made, therefore something must be done, "clarity" notwithstanding.

Facebook has responded. It has tried to do what the German government demands, even without helpful things like narrow definitions or realistic turnaround time. This report shows the social media behemoth has fielded 1,700 complaints from the German government over the last half of 2018. The claim that it hasn't complied with reporting requirements is absurd, given the lack of guidance from the German government.

As Mike Masnick has pointed out on multiple occasions, moderation at scale is difficult. It becomes impossible when dozens of competing interests push for expedient moderation of content not clearly defined by the laws Facebook is now subject to. The thing is, it doesn't matter to these governments. They just want a scapegoat with a full wallet, and Facebook certainly fits the bill. So we get what we have here: a law that nukes lawful content while still extracting cash from Facebook's coffers. Win-win, I guess, if that's all Germans expect from their government.

Filed Under: free speech, germany, hate speech
Companies: facebook

Following Trump Ruling Against Twitter Blockade, AOC Sued For Her Blocks On Twitter

from the yup dept

So we just wrote about the 2nd Circuit Appeals court affirming a victory for the Knight 1st Amendment Center against Donald Trump, making it clear that he cannot block followers on social media. As we noted, the case is very fact specific, and people shouldn't read too much into it. But, in general, it does find that if someone is a public official, using social media for official government purposes, and creating an open public forum out of that, they cannot block followers based on the views of those followers -- as that is the state engaging in impermissible viewpoint discrimination.

Some Trump supporters then spun that around on the other side of the aisle, picking out the fact that freshman Congresswoman Alexandria Ocasio-Cortez has blocked people on Twitter as well. Indeed, as Scott Greenfield points out, in the wake of the 2nd Circuit ruling, former NY State Assemblyman Dov Hikind has already sued Ocasio-Cortez, pointing out that she has him blocked on Twitter.

And, again, the whole point we tried to make with our post about the Trump ruling is that the rules are very fact specific -- but based on what's known so far, it looks like Hikind is absolutely correct. AOC famously uses her Twitter feed for official government business all the time. And if she's blocked Hikind for the way he expresses his views, it seems likely that she, too, is on the wrong side of the Constitution. From the lawsuit, it appears Hikind is very much blocked by AOC:

I've seen some people trying to distinguish the two cases -- but mostly that seems based on their political views, and whether they tend to support Trump or AOC. And that's a problem. There may be distinguishing factors that come out later, but from what's laid out in the lawsuit as presented, it seems like Hikind's case is pretty much identical to the Knight case, and AOC shouldn't be allowed to block people from this particular account. One possible distinction would be if AOC can prove that the decisions to block were not based on content (a violation of the 1st Amendment), but on actions, such as harassment -- however, it would be very, very difficult to make that case in a credible way that doesn't also create all sorts of knock-on consequences for speech.

I've seen some raise issues about how she should be able to make use of the tools provided on the platform to block trolls and harassers, but, again, that applies equally to Trump. And going back to basics, if the government official is creating an open forum, they cannot block people based on their expression. That's sort of fundamental to the 1st Amendment. And thus, if you agree that Trump can't block users, it seems that should apply equally to AOC, no matter if you support one of them, neither of them or even (amazingly) both of them.

Filed Under: alexandria ocasio-cortez, blocks, donald trump, dov hikind, first amendment, free speech, public forum, social media
Companies: twitter

Indonesian Court Convicts Woman Of Criminal Defamation For Recording Her Boss Trying To Harass Her Into An Affair With Him

from the we've-heard-the-complaints-and-move-to-prosecute-the-person-harmed dept

Let's hear it for prosecutorial discretion!

A school bookkeeper in Indonesia who recorded her boss’s lewd phone call as proof she was being harassed must serve at least six months in prison for distributing obscene material, the country’s Supreme Court has ruled.

[...]

Her boss, who goes by the single name Muslim, as is common in Indonesia, was the principal at Senior High School Seven in Mataram, Lombok’s largest city. Ms. Nuril recorded him using explicit language and hounding her to have an affair. He was never punished for harassing her and instead has been promoted repeatedly.

To be fair, we have to consider the extremely unfair political/human rights atmosphere in Indonesia, where women are expected to put up with sexual harassment and sexual assault if they expect to hold onto their jobs. And this definitely is a case of prosecutorial discretion -- a case in which prosecutors decided to press charges against the person who recorded evidence of workplace harassment, rather than the government employee who harassed her.

This recording was shared with others, who then shared it with other people. Once enough people had heard it, the asshole known only by the name "Muslim" decided to file a complaint. This prosecution for criminal defamation -- that is, Muslim claimed he was defamed by a recording of him saying and doing harassing things -- has led to a six month jail sentence and a $35,000 fine. If the fine isn't paid, it's two more months in jail for the harassment victim.

But let's not get carried away with feeling better about living in an open society like ours in the US of A, land of the free and begrudging proponent of civil rights. We hear a lot of talk here about "prosecutorial discretion," especially when bad laws are being written, passed, or enforced. Our prosecutors tend to believe they're tough but fair and possessors of hearts of gold, but we looooove to punish victims just as much as more "backwards" societies.

On multiple occasions, prosecutors have levied child porn production charges against teens who have sent naked photos of themselves to other teens. If that charge can't be made to stick, prosecutors labor long and hard to find some way to stick stupid teens with lifetime sex offender labels simply for doing stupid teen things like sexting.

Our prosecutors also punish victims of school violence and harassment. In at least one case, a bullied student who recorded his bullies was hit with criminal charges for trying to document these attacks by other students. School administrators have also called the cops on students who surreptitiously record conversations with school officials, claiming these violate state wiretap ordinances.

The fine people in law enforcement have, for years, abused state wiretapping laws to punish bystanders for recording abusive police behavior. And there are dozens of cases of negligent homicide generated every year that punish crime victims for being the victims of crime. Our prosecutors will even charge a mother for "killing" an infant, when it was actually an off-duty cop doing double the speed limit blowing through a red light and demolishing the minivan containing the now-dead infant.

Are we really better than other countries that treat perpetrators of sexual oppression as "victims" of crimes? Maybe. But not by much. We may have a better system of recourse, but the qualified immunity doctrine has allowed many perpetrators of crimes and rights violations to walk away untouched from allegations of abuse and misconduct.

No, this is an institutional problem all over the world. The phrase "prosecutorial discretion" can routinely be taken to mean "the stupidest, most-abusive prosecutions" will result from any law that can be twisted to serve government employees who choose to behave badly.

Filed Under: defamation, free speech, indonesia, sexual harassment

Appeals Court Affirms: Trump Can't Block Followers On Social Media

from the the-1st-amendment-abides dept

A little over a year ago, we wrote about the district court ruling saying that it's unconstitutional for the President to block followers on social media. The case was pretty interesting, raising questions about what counts as a "designated public forum" online. As we noted at the time, plenty of people were likely to misinterpret this ruling to mean that social media sites themselves were "public forums" and therefore had to abide by the 1st Amendment -- though one might hope that the Supreme Court's pretty clear ruling suggesting that social media sites are not in any way public forums would put a rest to that argument (spoiler alert: it won't).

Either way, the Trump administration appealed the lower court ruling and earlier this week, the 2nd Circuit affirmed the lower court ruling and agreed that it was a 1st Amendment violation for Trump to block followers. Once again, the legal specifics here are a bit in the weeds, and as Ken White noted in a tweet, it would have been nice if the ruling was more careful and more clear in dealing with the various complicated concepts at play. On that front, it failed. Overall, though, the ruling is the right decision -- it just would have been nice if the judges had been more careful in explaining it.

The key point, though, is that if (1) a public official is (2) using social media (3) for official purposes (4) to create a space of open dialogue (and all four of those factors are met) then they cannot block people from following them based on the views those users express, as it violates the 1st Amendment. The court is explicit that this ruling has nothing to do with whether or not private companies are bound by the 1st Amendment (because they are not):

We do not consider or decide whether an elected official violates the Constitution by excluding persons from a wholly private social media account. Nor do we consider or decide whether private social media companies are bound by the First Amendment when policing their platforms. We do conclude, however, that the First Amendment does not permit a public official who utilizes a social media account for all manner of official purposes to exclude persons from an otherwise‐open online dialogue because they expressed views with which the official disagrees

The court makes it clear that President Trump's Twitter account meets the various factors above. He's a public official (duh) using Twitter (also duh). There is some discussion of how it's used for official purposes:

The President and multiple members of his administration have described his use of the Account as official. The President has stipulated that he, with the assistance of Defendant Daniel Scavino, uses the Account frequently “to announce, describe, and defend his policies; to promote his Administration’s legislative agenda; to announce official decisions; to engage with foreign political leaders; to publicize state visits; [and] to challenge media organizations whose coverage of his Administration he believes to be unfair.” Id. at 56. In June 2017, then‐White House Press Secretary Sean Spicer stated at a press conference that President Trump’s tweets should be considered “official statements by the President of the United States.” Id. at 55‐56. In June 2017, the White House responded to a request for official White House records from the House Permanent Select Committee on Intelligence by referring the Committee to a statement made by the President on Twitter.

Moreover, the Account is one of the White House’s main vehicles for conducting official business. The President operates the Account with the assistance of defendant Daniel Scavino, the White House Director of Social Media and Assistant to the President. The President and his aides have characterized tweets from the Account as official statements of the President. For example, the President used the Account to announce the nomination of Christopher Wray as FBI director and to announce the administration’s ban on transgender individuals serving in the military. The President used the Account to first announce that he had fired Chief of Staff Reince Priebus and replaced him with General John Kelly. President Trump also used the Account to inform the public about his discussions with the South Korean president concerning North Korea’s nuclear program and about his decision to sell sophisticated military hardware to Japan and South Korea.

The court then notes that the President chose to block certain individuals because they were criticizing the President.

In May and June of 2017, the President blocked each of the Individual Plaintiffs (but not the Knight First Amendment Institute) from the Account. The government concedes that each of them was blocked after posting replies in which they criticized the President or his policies and that they were blocked as a result of their criticism.

In court, the DOJ tried to argue that while the Twitter account is part of Trump's presidency, that the blocking was not a "state action." The court does not buy this. At all.

No one disputes that the First Amendment restricts government regulation of private speech but does not regulate purely private speech. If, in blocking, the President were acting in a governmental capacity, then he may not discriminate based on viewpoint among the private speech occurring in the Account’s interactive space. As noted, the government argues first that the Account is the President’s private property because he opened it in 2009 as a personal account and he will retain personal control over the Account after his presidency. However, the fact that government control over property is temporary, or that the government does not “own” the property in the sense that it holds title to the property, is not determinative of whether the property is, in fact, sufficiently controlled by the government to make it a forum for First Amendment purposes. See Se. Promotions, Ltd. v. Conrad, 420 U.S. 546, 547‐52 (1975) (holding privately‐owned theater leased to and operated by city was public forum). Temporary control by the government can still be control for First Amendment purposes.

The government’s contention that the President’s use of the Account during his presidency is private founders in the face of the uncontested evidence in the record of substantial and pervasive government involvement with, and control over, the Account. First, the Account is presented by the President and the White House staff as belonging to, and operated by, the President. The Account is registered to “Donald J. Trump, ‘45th President of the United States of America, Washington, D.C.’” App’x at 54. The President has described his use of the Account as “MODERN DAY PRESIDENTIAL.” Id. at 55. The White House social media director has described the Account as a channel through which “President Donald J. Trump . . . [c]ommunicat[es] directly with you, the American people!” Id. The @WhiteHouse account, an undoubtedly official Twitter account run by the government, “directs Twitter users to ‘Follow for the latest from @POTUS @realDonaldTrump and his Administration.” Id. Further, the @POTUS account frequently republishes tweets from the Account. As discussed earlier, according to the National Archives and Records Administration, the President’s tweets from the Account “are official records that must be preserved under the Presidential Records Act.” Id. at 57.

Second, since becoming President he has used the Account on almost a daily basis “as a channel for communicating and interacting with the public about his administration.” Id. at 54. The President utilizes White House staff to post tweets and to maintain the Account. He uses the Account to announce “matters related to official government business,” including high‐level White House and cabinet‐level staff changes as well as changes to major national policies. Id. at 56. He uses the Account to engage with foreign leaders and to announce foreign policy decisions and initiatives. Finally, he uses the “like,” “retweet,” “reply,” and other functions of the Account to understand and to evaluate the public’s reaction to what he says and does. In sum, since he took office, the President has consistently used the Account as an important tool of governance and executive outreach. For these reasons, we conclude that the factors pointing to the public, non‐private nature of the Account and its interactive features are overwhelming.

The government argues that since any Twitter user can block people, so should the President be able to do the same. But, again, the Court (correctly) notes that he President is different and held to a different standard (known as the Constitution) that regular people don't have to follow.

The court notes that not every public official account is automatically covered this way. They need to actually use it for government business, among other things:

Of course, not every social media account operated by a public official is a government account. Whether First Amendment concerns are triggered when a public official uses his account in ways that differ from those presented on this appeal will in most instances be a fact‐specific inquiry. The outcome of that inquiry will be informed by how the official describes and uses the account; to whom features of the account are made available; and how others, including government officials and agencies, 1 regard and treat the account. But these are concerns for other cases and other days and are ones we are not required to consider or resolve on this appeal.

The next section is where the opinion gets a little... less-than-clear in its explanation, which might lead to people annoyingly presenting it as something it is not. First, the government tried to argue that the replies to Trump's Twitter account are not a public forum. But the court notes that it's well established that the First Amendment does apply online (note: this is not saying that private internet companies are bound by the 1st Amendment -- but just that the government is unable to engage in viewpoint discrimination online).

If the Account is a forum—public or otherwise—viewpoint discrimination is not permitted. Int’l Soc. For Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 679 (1992); see also Pleasant Grove, 555 U.S. at 469‐70 (viewpoint discrimination prohibited in traditional, designated, and limited public forums); Cornelius, 473 U.S. at 806 (viewpoint discrimination prohibited in nonpublic forums). A blocked account is prevented from viewing any of the President’s tweets, replying to those tweets, retweeting them, or liking them. Replying, retweeting, and liking are all expressive conduct that blocking inhibits. Replying and retweeting are messages that a user broadcasts, and, as such, undeniably are speech. Liking a tweet conveys approval or acknowledgment of a tweet and is therefore a symbolic message with expressive content. See, e.g., W. Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 632‐33 (1943) (discussing symbols as speech). Significantly, the parties agree that all of this expressive conduct is communicated to the thousands of users who interact with the Account. By blocking the Individual Plaintiffs and preventing them from viewing, retweeting, replying to, and liking his tweets, the President excluded the Individual Plaintiffs from a public forum, something the First Amendment prohibits.

The court is also not impressed by the DOJ's claim that blocking does not burden anyone's speech.

That assertion is not well‐grounded in the facts presented to us. The government is correct that the Individual Plaintiffs have no right to require the President to listen to their speech. See Minnesota State Bd. for Cmty. Colleges v. Knight, 465 U.S. 271, 283 (1984) (a plaintiff has “no constitutional right to force the government to listen to their views”). However, the speech restrictions at issue burden the Individual Plaintiffs’ ability to converse on Twitter with others who may be speaking to or about the President. President Trump is only one of thousands of recipients of the messages the Individual Plaintiffs seek to communicate. While he is certainly not required to listen, once he opens up the interactive features of his account to the public at large he is not entitled to censor selected users because they express views with which he disagrees.

Again: here the ruling could have been clearer. Some will argue (incorrectly) that this shows that when people say that if you're banned from one particular platform, even if you have many others, you've had your 1st Amendment rights taken away from you. But, again, the key factor here is whether or not it is state action doing the banning. That's where it's unconstitutional.

It's a good overall ruling and the correct outcome. I just wish the judge had been a bit clearer in some of the statements. And, for those who will falsely use this ruling to argue that the case says that Twitter itself is a public forum and must abide by the 1st Amendment, law professor Eugene Volokh does a nice job explaining why you're wrong:

Whether the First Amendment applies to a speech restriction generally depends on who is imposing the restriction. If the government is imposing the restriction, then the First Amendment does apply, whether or not the speech is on private property. Likewise, if a private entity is imposing the restriction, then the First Amendment doesn't apply, whether or not the speech is on government property. (If, for instance, I hit you because of an offensive message that you're wearing on a city sidewalk, I'm guilty of a crime and a tort, but not a First Amendment violation, unless I'm acting in my capacity as an agent for the government. If your private employer fires you because it learns of your having said something offensive on a city sidewalk, then in many states it wouldn't be guilty of anything, and in any event not of a First Amendment violation.)

So, again, one can argue that @RealDonaldTrump is run by President Trump in his personal capacity, not his official capacity; but once the court rejected that view, then it doesn't matter that @RealDonaldTrump is a forum set up on a private company's computers. Though Twitter, as a private actor, isn't bound by the First Amendment, a government official, acting in his official capacity, is bound by it.

Either way, kudos to the team at the Knight 1st Amendment Center who brought this case and have continued to pursue this key (and very interesting) aspect of 1st Amendment law.

Filed Under: 1st amendment, donald trump, elected officials, free speech, public forums

Politicians Queue Up To Make France's Proposed Law Against 'Hateful Content' Far, Far Worse

from the gag-that-ag-gag dept

The intent behind "ag-gag" laws is pretty evident. The aim is to prevent the general public learning about unsatisfactory or downright cruel conditions in which animals are kept by some farmers. Techdirt has been reporting on them for a number of years. Fortunately, US courts are increasingly throwing them out as unconstitutional. So far, ag-gag laws seems to be a US specialty, but that may be about to change. A new law under discussion in France would force online companies to remove "hateful content" from their networks within 24 hours. The journalist Marc Rees spotted a proposed amendment to the law that would define the following content as "hateful" (via Google Translate):

stigmatizing agricultural activities, breeding or sale of products from agriculture and livestock breeding and inciting acts of intrusion or violence vis-à-vis professionals of agriculture, livestock breeding and the processing and sale of products from these sectors

As an article in Numerama (original in French) points out:

All these criminal acts are already repressed by the law. For example, death threats are handled in the penal code, with several years in prison and a fine of up to tens of thousands of euros. Ditto for the night intrusions, which can be assimilated to a violation of domicile

The only thing that this proposed amendment adds to the current law in France is the requirement for online services to take down posts that "stigmatize" farmers in some vague way -- an ag-gag law, in other words.

Trying to turn proposed legislation against "hateful content" into an ag-gag law is just one example of how a bad idea is being made into a worse one. Other amendments have been put forward that would force online companies to remove within 24 hours "hateful" posts about physical appearance, disabilities, political opinions, mother tongue, cultural practices, and many other areas where feelings often run high (original in French, behind paywall). One amendment even wants an open list of "hateful" things that have to be taken down within 24 hours, so that new categories can be added in the future without needing to amend the legislation. It will be fun watching how French politicians fight among themselves over what should or shouldn't be included from the long list of proposed additions. The danger is clearly that whatever the outcome, the harm to freedom of speech in France -- and maybe beyond -- will be even worse than critics of the new law feared.

Follow me @glynmoody on Twitter, Diaspora, or Mastodon.

Filed Under: ag-gag, censorship, france, free speech, hate speech, hateful content

The UK's Entire Approach To 'Online Harms' Is Backwards... And No One Cares

from the this-is-not-a-good-idea dept

Back in April, the UK (with Theresa May making the announcement) released a plan to fine internet companies if they allowed "online harms" in the form of "abhorrent content." This included "legal" content. As we noted at the time, this seemed to create all sorts of problems. Since then, the UK has been seeking "comments" on this proposal, and many are coming in. However, the most incredible thing is that the UK seems to assume so many things in its plan that the comments it's asking for are basically, "how do we tweak this proposal around the edges," rather than, "should we do this at all?"

Various organizations have been engaging, as they should. However, reading the Center for Democracy & Technology's set of comments to the UK in response to its questions is a really frustrating experience. CDT knows how dumb this plan is. However, the specific questions that the UK government is asking don't even let commenters really lay out the many, many problems with this approach.

And, of course, we just wrote about some new research that suggests a focus on "removing" terrorist content has actually harmed the efforts against terrorism, in large part by hiding from law enforcement and intelligence agencies what's going on. In short, in this moral panic about "online harms", we're effectively sweeping useful evidence under the rug to pretend that if we hide it, nothing bad happens. Instead, the reality is that letting clueless people post information about their dastardly plans online seems to make it much easier to stop those plans from ever being brought to fruition.

But the UK's "online harms" paper and approach doesn't even seem to take that possibility into account -- instead it assumes that it's obviously a good thing to censor this content, and the only questions are really around who has the power to do so and how.

The fact that they don't even seem to be open to the idea that this entire approach may be counterproductive and damaging suggests that the momentum for this proposal is unlikely to be stoppable -- and we're going to end up with a really dangerous, censorial regulation with little concern for all the harm it will cause, even when it regards actual harms like terrorist attacks.

Filed Under: content moderation, harm, online harms, terrorist content, uk

College Forgets How The First Amendment Works; Targets Its Own Student Newspaper With A Public Records Request

from the seems-like-it's-time-for-a-refresher-course dept

A California community college has discovered open records requests. It's not receiving them, which would be normal. Instead, it's filing them. And in doing so, it's attempting to bypass the state's journalist shield law by pretending the party it's FOIAing is a public entity.

In an apparent attempt to regain narrative control of an incident involving the college's administration and the student government, Southwestern College is seeking to obtain the recording of that event by the school's student newspaper. The recording is of a student government election that was abruptly cancelled by the school's president in May, apparently over a bogus Instagram post that suggested one group of students was going to engage in interracial violence.

The school was rebuffed when it swung by the newspaper to ask for a copy of this recording. So, it decided to go with plan B: a public records request.

As FIRE (Foundation for Individual Rights in Education) reports, the school is attempting to obtain something protected by the state's shield law. The school is aware of this because the student newspaper told it as much when it asked the first time. So, it made an official request and appended a lot of garbage to its request in an attempt to talk the newspaper into believing it was subject to public records requests.

Less than a week later, the administration hand-delivered a second letter to the permanent adviser, now back from medical leave, incorrectly alleging that the newspaper was a government actor and thus subject to the California Public Records Act. Further, the Title IX director claimed that not producing the records was “subversion of the public’s right to access” in violation of the Society of Professional Journalists’ Code of Ethics.

It’s not.

The school is so so so very wrong. It has now received a letter [PDF] of its own from FIRE -- crafted by Adam Steinbaugh -- that enumerates the many ways the college screwed up. To begin with, the college's interpretation of the state's public records law gets everything backwards.

The novel theory underlying the District’s request—that student organizations are subject to the California Public Records Act (CPRA) because they are entities that are “part of the larger Southwestern Community College District” and are engaged in activities “funded by the College District, and produced by students”—finds no support in the CPRA.

The CPRA does not confer a public right to access records of private entities, but instead allows public access to public agencies.

The school's belief the student newspaper is as "public" as the university where it resides is also wrong. As Steinbaugh notes, the paper is an auxiliary organization distinct from the college. If the school truly believed the paper was part of its public whole, it would have approached a separate office of the school's administration to submit its public records request.

Furthermore, even if the school was right and the paper was subject to the state's public record laws, the paper would still be well within its rights to withhold the recording. The paper's First Amendment rights, along with the state's shield law, would give it all the permission it needed to deny the request.

The deference afforded to journalists’ protection of confidential sources and unpublished information cannot be understated. There is a “paramount public interest in the maintenance of a vigorous, aggressive and independent press capable of participating in robust, unfettered debate over controversial matters . . . .” Los Angeles Mem’l Coliseum Comm’n v. Nat’l Football League, 89 F.R.D. 489, 495 (C.D. Cal. 1981). Even leaving aside the considerable First Amendment right to resist government efforts to compel the release of unpublished information, as discussed below, California has elevated a journalist shield law in its state constitution. (Cal. Const., Art. I § 2 subd. (b).) 7 Similarly, California goes to great lengths to place barriers between student newspapers and their host institutions. (Ed. Code § 66301 subd. (a) & (f) (barring administrators from taking action to penalize students or faculty advisers for students’ protected expression).) Southwestern may not make an end-run around these barriers by resorting to an unorthodox application of the CPRA.

Steinbaugh also reminds the college to tread carefully now that it's been told multiple times to GTFO. Retaliation against protected speech is a helluva tort and public college administrators cannot expect qualified immunity to save them if this turns litigious.

Filed Under: california, free speech, journalism, public records, shield law
Companies: southwestern college

Facebook To Start Handing User Info To French Government So It Can Start Punishing People For Being Stupid

from the terrorism-equations-DRINK! dept

In a move that's indicative of the tech companies' newfound willingness to roll over for overseas governments, Facebook will be handing user data to the French government to help it chase down people who've posted illegal words.

In a world first, Facebook has agreed to hand over the identification data of French users suspected of hate speech on its platform to judges, France’s minister for digital affairs Cedric O said on Tuesday.

France has criminalized hate speech, building on legislation that worked out oh so well in Germany. Facebook has already allowed French government censors to embed with the company's moderation teams. Facebook.gov is no one's idea of a better world, but there was always a chance French regulators might actually learn something from the experience: namely, that moderating content at scale isn't easy and tends to cause collateral damage if performed the way multiple governments would prefer.

It appears little has been learned. Mark Zuckerberg's recent meeting with France's president may have little to with this, but Facebook has been historically cooperative with other demands from the French government. However, previous cooperation generally concerned terrorism investigations, not people engaging in criminalized ignorance.

The French government naturally seems pleased with Facebook's decision to deliver hateful users into the hands of authorities.

“This is huge news, it means that the judicial process will be able to run normally,” O told Reuters in an interview. “It’s really very important, they’re only doing it for France.”

By "normally," O means "efficiently." Government efficiency is the enemy of rights and civil liberties. US companies are doing no favor for users around the world by speeding up dubious prosecutions of questionable laws. While it's natural to curry favor with the only entities powerful enough to make Facebook pay attention. It's not just about user bases. It's about locking smaller competitors into restrictive compliance regimes that they may not be able to handle.

But this isn't the only stupid thing going on here. Supporters of Facebook's generous kowtowing are letting dumb fall right out of their mouths and onto the pages of Reuters.

“It is a strong signal in terms of regulation,” said Sonia Cisse, a counsel at law firm Linklaters, adding that it was a world first. “Hate speech is no longer considered part of freedom of speech, it’s now on the same level as terrorism.”

What the actual fuck. Ignorant people saying ignorant things is not even close to equivalent of violent acts that kill and maim people just because they don't agree with the terrorists or, worse, just because they're there. While I understand that France's protections for speech are not on par with the First Amendment, equating hate speech with terrorism is stupid and will end up costing stupid people their freedom, even if they've done nothing more than let everyone else know how stupid they are.

Filed Under: france, free speech, hate speech, privacy, surveillance
Companies: facebook

Russian Government Demands All Foreign Press Outlets Register For The Privilege Of Delivering News To Russia

from the get-in-the-sea,-Putin dept

The Russian government sure loves its registration. If anyone wants to do anything involving the written (and/or broadcasted) word in Russia, the government wants to know who you are. That makes it easier to find you should you displease the Russian government and/or its bear-riding autocrat.

It's so great to be part of the new New World Order. Gone are the days of the Soviet Union and its direct control of the nation's press outlets. We're living in a new era of quasi-, mostly-mob-fueled-capitalism in Russia. And with it comes… the direct control of the nation's press outlets.

The Russian government has demanded all bloggers register with the government in order to continue blogging. The government has also demanded all Wi-Fi networks be registered with the government. So it goes without saying all domestic press is registered with the government, but we'll say it anyway since unregistered press outfits are being hit with hefty fines for not playing ball with their overlords.

That takes care of the domestic "problem." But what about all those pesky extranationals whose printed words might be somehow troublesome to the Russian Republic? Well, Putin et al have a solution whipped up to keep dirty foreigners from apprising Russian citizens about the sad state of their country under its autocratic leadership.

Under the new law, media publications must obtain a permit and register their media outlet with Russian media watchdog, Roskomnadzor. [...] The law was proposed to better regulate foreign media outlets who have contracts with local distributors. The new law is supposed to make sure all of these contracts are brought under the review of the state.

As expected, the new law has its critics, both foreign and domestic. And, as expected, the Russian government has not a single fuck to give about critics of its media control.

The new law governs all printed media distributed by non-citizens, bringing it in line with the domestic product. The fines, however, aren't all that hefty (although exchange rates may make them particularly painful for some countries). They're even less hefty if foreign press outlets refuse to pay them, which seems like a totally legitimate option when faced with illegitimate use of government power.

Those with deeper pockets should pay the nominal fees (which range from $23 to $470, depending on the size of the corporation) and keep pumping info not directly controlled by the Russian government into the eyeballs and brains of Russian citizens. Those that can't pay the fees -- or are willing to stand on principle -- should continue to do the same thing, only without cutting checks to a lousy government that can't stand having an informed populace.

As for American tech companies, they too should extend a digital middle finger to Roskomnadzor when it starts demanding content the Russian government finds offensive be removed or blocked. You're not the boss of me is the operative phrase here and it should be delivered as frequently -- and as petulantly -- as possible.

Filed Under: free speech, journalism, news, registration, russia