Vietnam Expands Decades Long Effort To Crack Down On Any Dissent Online By Demanding Data Be Kept In The Country

from the wider-impact dept

It's no secret that the Vietnamese government is no fan of the open internet. All the way back in 2002 we wrote about the government requiring people to register just to create a website. That same year we were writing about people being arrested for posting criticism of the government. In 2008, we wrote about the Vietnamese government banning "subversive" blogs as well. With the rise of social media, Vietnam has shifted its focus there. In 2013, it banned news reporting on social media, saying it should be for personal use only. In 2014, we wrote about how the government was abusing Facebook's own reporting tools to shut down dissenters from using the site. And at the beginning of this year, we wrote about how the government now employed around 10,000 people whose only job was to monitor the internet for dissent.

And now it's going to get even worse -- to a degree that might even lead some of the big internet companies to leave Vietnam entirely. And we have the NSA (partially) to blame. Ever since the revelation of the Snowden documents, describing how the NSA was getting access to all sorts of data and metadata on foreigners by compelling various private companies to cough up their data, there's been a big push among some for data localization. Some of that push has come from privacy activists themselves, arguing in other countries that their data shouldn't be allowed to go to the US where the NSA has so much access -- but much of it has simply been using the NSA revelations as a stalking horse to get what they want: which is the ability to snoop locally on all of that data. That's why countries like Russia has been a huge proponent of data localization.

And now we can add Vietnam to the list. Despite strong condemnation from the US (and US internet companies) it appears that Vietnam wants to require any internet company with Vietnamese users to host that data locally where the government and its thousands of content monitors can snoop on it:

The new draft decree requires companies providing a range of services, including email, social media, video, messaging, banking and e-commerce, to set up offices in Vietnam if they collect, analyze or process personal user data.

The companies would also be required to store a wide range of user data, ranging from financial records and biometric data to information on peoples’ ethnicity and political views, or strengths and interests inside Vietnam’s border.

Not surprisingly, the same law gives law enforcement much greater ability to demand data from these platforms, because of course it does. The Vietnamese officials pushing this plan say its necessary for "cybersecurity" which is utter nonsense.

This could be a real test for companies like Facebook and Google and there's a strong argument they (and others) should seriously consider simply shutting off access in that country, even as both sites are quite popular there. Giving in here will undoubtedly mean having to give in elsewhere, and literally supporting the suppression of political dissent.

Filed Under: censorship, data localization, free speech, stifling dissent, vietnam

UK Refreshes Stupid Porn Filter Law, Making It Fresher But No Less Stupid

from the only-the-shiniest-solid-waste dept

The UK government is still polishing its porn filtering law. The latest updates to the law show there's been some effort put forth to make the law less stupid, but even these additions don't make the law (or its implementation) much better.

There are still threats of fines and other governmental pressure should sites fail to "voluntarily" adopt the measures recommended by the UK government when the law goes live next year. One noticeable change is that the responsibility of deciding what is or isn't porn will be placed in the hands of the UK's film classification board, the British Board of Film Classification. If it's anything like the MPAA, it won't necessarily know porn when it sees it, but it will know what it doesn't like and regulate along those lines.

The updated guidelines [PDF] try to blend suggestions and mandates into something cohesive and palatable, all while removing as much government accountability as possible. The updates recognize collecting personally-identifiable info on British porn filters creates a juicy target for malicious actors. It also notes this data collection must somehow comply with the UK's tangle of privacy laws, meaning companies should put some sort of protections in place, but not so much they undermine positive identifications.

The BBFC suggests a possible compromise: verification of age only and no retention of site access logs. But, like everything else, this too is only a suggestion. This means sites are free to gather and retain as much info as they'd like and potentially dodge privacy-related legal battles by pointing to the UK government's porn blockade demands.

In this ridiculous pile of "would you kindly (under possible penalty of law)?", one aspect of the porn filtering plans continues to stick out. And it promises to make the BBFC's job extremely difficult, if not completely impossible. One round of updates on and the UK government is still no closer to resolving the issue, as The Verge's James Vincent points out:

A final addition in the BBFC’s guidelines is a newly clarified exemption for any site where “pornographic material makes up less than a third of content.” So if a site is two-thirds safe for work, it won’t have to verify users’ ages. This means social media platforms like Twitter, Reddit, and Tumblr — which are home to a lot of pornographic material — will not be policed. (Sites that advertise pornography are not covered by this exemption.)

However, the current wording of the guidelines still leaves a lot of unanswered questions. For example, how exactly will regulators measure the ratio of SFW to NSFW content? “Are they going to measure this in URLs, number of files, pixels, or what?” asks [Open Rights Group director James] Killock.

Good question. And, at this point, one the BBFC can't answer. This will compound the problems plaguing any content filtering system: overblocking, underblocking, and easy circumvention. The filtering offered by ISPs has already dabbled in all three, and the law is still a few months away from its official debut.

The one thing the filtering law is almost guaranteed to accomplish is increase the marketshare of incumbents -- both in terms of ISPs and porn providers. One of the age verification methods being shopped around was created by the media company (MindGeek) that owns some of the largest porn sites in the world. If MindGeek's software becomes the de facto solution to verification problems, the company will be able to tie its competitors up with licensing agreements for years to come (and to collect data on competitors' users during the verification process).

The UK government is addressing a problem that cannot be completely solved by offering up a handful of half-assed suggestions backed by ethereal threats of punishment if the internet in general fails to comply. The embarrassment it's been throughout the course of its development is in no danger of redeeming itself in the future.

Filed Under: porn, porn filter, uk

Chinese Professor Argues Google Should Launch A Censored Search Engine In China

from the leaves-out-the-problems dept

There's been quite a lot of reasonable uproar over the leaked plans for Google to re-enter the Chinese market with a censored, locked down search engine. There's a lot of history there, but giving in to the authoritarian government's desire to block access to all sorts of content would seem to go very much against Google's stated focus on helping provide access to information around the globe. There have been numerous recent reports of Google employees protesting this decision internally, and even some employees have quit Google to put an exclamation point on just how against this idea they are. Recently an opinion piece in the South China Morning Post from a Chinese professor started making the rounds, arguing that "even a censored Google search engine would be better" for people in China than its current main search engine, Baidu.

The argument from Bai Tongdong, a professor of philosophy at Fudan University, is pretty straightforward. More or less, it argues that Baidu is not a very good search engine. Google, even in a heavily censored fashion, is almost certainly going to be a lot better, and thus it will certainly aid in getting everyday people in China more access to information:

As a college professor, I find Baidu’s search results on scholarly matters deeply frustrating, because they don’t lead me to the webpages I wish to find. In contrast, Google’s search results are far more useful. Thanks to my part-time employment at New York University’s law school, I can use its virtual private networks (VPN) to access Google, a benefit that I consider more valuable than the extra pay.

And it is not just terrible search results, and the lack of access to useful tools such as Google Books. Baidu’s shameless commercialisation of its search engine has been the subject of controversy. For example, companies could – and maybe still can – bid for the top spots in Baidu’s search results, and users are not warned that these results are the outcome of commercial bidding and not sorted by relevance, as is the practice with Google.

In one case that sparked a public outcry, a young man used Baidu to search for treatments and clinics for the rare form of the cancer he suffered from. The man’s family spent over 200,000 yuan (US$29,000) on an experimental treatment at one of the for-profit hospitals that topped his Baidu search, but the treatment was unsuccessful and he died. The search results could have caused him to miss potentially life-saving treatment.

Undoubtedly this is true. It would certainly probably improve the search engine results and options for Chinese residents. But that's not really the point of why Google left China nearly a decade ago, nor the reason why people are concerned about its plans for a censored re-entry. I don't think anyone denies that it probably would be useful for Chinese residents and citizens. The question is at what cost does this come? Giving into an authoritarian government, hiding important and often useful information -- including information critical or mocking of the Chinese government -- is something that many people think is fundamentally wrong. Appeasing authoritarian governments never leads to good outcomes.

The article suggests that since it would improve the lives of the average Chinese individual, and because Google could always pull out again if it felt pressured to go to far in the moderation of the search engine, that this shouldn't be a huge concern. But that ignores the idea that having the government censor the search engine results in the first place should already be seen as a bridge too far.

Finally, he argues against the idea that Google staying out of China leads to China changing its policies, and thus, Google should re-enter the market:

...the simple fact is that, although it has been years since Google exited China, nothing much has changed or is expected to change for better in those areas. While the situation can’t worsen, there is a chance that Google might prompt an improvement.

In a world in which the only choices available are between the purely good and the purely evil, that is, in a world that has never existed and will never exist, “do no evil” would be a good guiding principle. In the world we live in though, the practical motto should be “do the lesser evil”. For, after all, a morally compromised Google is still better than Baidu.

That's really throwing in the towel entirely, though. The entire argument is based on the idea that Google hoped that leaving China would prompt some change in its unhealthy censorship policies. But, if true, that would entrust to Google a lot more power than I think even the biggest Google booster thinks the company has. It didn't pull out of China to try to force China's hand. It pulled out of China because it believed China's censorship and surveillance campaigns were simply wrong. That hasn't changed, and that's why Google shouldn't give in here. It's not about some big calculus about what's better for whom. It's about not censoring content at the behest of an authoritarian censorship-happy government.

Filed Under: censorship, china, dragonfly, search, suppression
Companies: baidu, google

Canadian Privacy Commissioner Goes To Court To Determine If Canada Can Force Google To Delete History

from the one-hopes-they-won't-get-this-wrong dept

Canada has been stumbling towards an EU-style "right to be forgotten" (RTBF) for quite some time now. There was a big case last year that not only said Google can be forced to remove links to certain information, but that it could be forced to do so globally (i.e., outside of just Canada). That was as a result of a specific lawsuit about specific information, but this year, a bigger exploration of the RTBF concept has been underway, as some have argued that Canada's PIPEDA (Personal Information Protection and Electronic Documents Act) meant that Google should be forced to "de-link" articles on certain people's name searches upon request (just like the EU's RTBF).

A report from the Canadian Privacy Commissioner earlier this year argued that PIPEDA already provided such a right and the Privacy Commissioner Daniel Therrien has been stumping for this ever since. Google has -- for obvious reasons -- been expressing its position that this is ridiculous, saying that PIPEDA does not apply to de-linking individuals' names from news articles, and further argued that requiring such a result would be unconstitutional.

While it's clear that the Privacy Commissioner disagrees with Google, it has now asked the Canadian federal courts to weigh in:

Google asserts that PIPEDA does not apply in this context and that, if it does apply and requires the articles to be de-indexed, it would be unconstitutional.

Following public consultations, the OPC took the view that PIPEDA provides for a right to de-indexing – which removes links from search results without deleting the content itself – on request in certain cases. This would generally refer to web pages that contain inaccurate, incomplete or outdated information.

However, there is some uncertainty in the interpretation of the law.

In the circumstances, the most prudent approach is to ask the Federal Court to clarify the law before the OPC investigates other complaints into issues over which the office may not have jurisdiction if the court were to disagree with the OPC’s interpretation of the legislation.

A Notice of Application, filed today in Federal Court, seeks a determination on the preliminary issue of whether PIPEDA applies to the operation of Google’s search engine. In particular, the reference asks whether Google’s search engine service collects, uses or discloses personal information in the course of commercial activities and is therefore subject to PIPEDA. It also asks whether Google is exempt from PIPEDA because its purposes are exclusively journalistic or literary.

The thing that still baffles me about this is that anyone could possibly consider news reporting to be subject to "data protection" laws. This is unfathomable if you believe in concepts like freedom of expression and freedom of the press. Data protection is supposed to be about things like databases of information on someone, not news articles about someone. Yet, the EU mucked this up years ago, and now it's spreading. From the way the Privacy Commissioner has framed the question, it seems like there's a decent chance the court will rule against Google's view on this, meaning that censorship of news articles on public individuals, and the blatant rewriting of history will be enabled across Canada.

And, even worse, because of the Canadian rulings saying that the RTBF rulings in Canada should be applied globally, Canada may soon be the place to go to literally try to delete history. What a shame.

Filed Under: canada, data protection, erasing history, free speech, jurisdiction, pipeda, privacy, right to be forgotten
Companies: google

Another Critic Of Egypt's Government Gets Hit With 'Fake News' Charges

from the thanks-trump dept

Fake news is a handy term deployed by authoritarians to criticize speech they don't like. Since it's such a malleable term, it's been co-opted by a handful of foreign governments as the basis for new laws. We don't have a fake news law here, fortunately, but it's Trump's frequent use of the term that has given it worldwide traction.

Egypt's "fake news" laws comes bundled with lots of other speech-censoring add-ons. Earlier this year, an Egyptian journalist was charged with "spreading false news" and "misuse of a social media account"[!] for exposing state police brutality. The government's evidence against the journalist included account suspensions by US social media companies quite possibly triggered by takedown requests the government had issued.

Egyptian human rights activist Amal Fathy is the latest victim of the "fake news" law, which was tacked onto a sweeping "cybercrime" bill that gives the Egyptian government more direct control of citizens' access to internet services.

Here's how Fathy fell victim to the new cyberlaws:

Last May, Amal Fathy posted a 12-minute video on Facebook in which she described how she had been sexually harassed while visiting her bank.

She also criticised the government for not doing enough to protect women.

She was arrested two days later, and charged with attempting to harm the Egyptian state and possessing indecent material.

Fathy received a two-year suspended sentence and a $560 fine for criticizing her government. Her actions were described by the government as "spreading fake news." The word "news" apparently also covers opinions, which aligns it with the US President's deployment of the term.

Fathy won't be the last person punished for criticizing the Egyptian government. The law is working just the way it was always supposed to, even if it was pitched to residents as something necessary to counter national security threats.

Egypt's government now has even more power to block internet services and directly oversee any social media accounts with large numbers of followers. Critics of the government aren't threatening the security of the nation, but the government is willing to overlook the letter of the law to pursue its true, dissent-crushing spirit.

Filed Under: criticism, egypt, fake news, free speech, suppression

Thomas Goolnik Gets Google To Forget Our Story About Him Getting Google To Forget Stories About Thomas Goolnik

from the sorry-thomas dept

You'll recall, of course, that prior to the GDPR, there was a big case against Google in the EU that created, out of thin air, a "right to be forgotten" (perhaps, more accurately, "a right to be delinked") saying that for certain classes of information that showed up in Google's search index, it should be treated as personal data that had to be delinked from that user's name as no longer relevant. This never made any sense at all. A search result is not like out-of-date customer database info, yet that's how the Court of Justice in the EU treated it. Unfortunately, with the General Data Protection Regulation (GDPR) going into effect earlier this year, the "right to be forgotten" was even more officially coded into law. We've noted recently, there have been a few attempts to use the GDPR to delete public information on American sites, and now we at Techdirt have been hit with what appears to be just such an attempt.

This particular attempt goes back to some previous attempts under the pre-GDPR "right to be forgotten" setup. We need to dig into the history a bit to understand the details. You see, soon after the floodgates opened on delinking names from Google, we wrote about an article in the NY Times discussing how five of its articles had been delinked via RTBF claims. It was not 100% clear who had made the requests, but we did highlight some of the names and stories, including one where we called the removal "questionable." It involved a NY Times article from 2002 about a legal action by the FTC which went after a group of companies allegedly run by a guy named Thomas Goolnik. The companies -- TLD Network, Quantum Management and TBS Industries -- were accused of "unfair or deceptive acts or practices" by selling domains that did not exist at the time (specifically, they were trying to sell domains using top level domains that did not exist, including .sex, .bet, .brit, and .scot.)

The FTC eventually settled with Goolnik and the companies with some significant concessions:

The settlement bars the defendants from making misrepresentations about the usability of domain names or about the nature of any product or service they sell over the Internet. The settlement also bars the defendants from failing to clearly and conspicuously disclose material limitations or conditions on the usability or functionality of domain names. The settlement bars the defendants from selling customer lists. In addition, the defendants will turn over as much as $300,000 being held in merchant accounts for consumer redress. Redress payments will be available to consumers in the UK and other countries, as well as the United States. The settlement also contains record-keeping requirements to allow the FTC to monitor compliance with the court's order.

This seems like information that is very much in the public interest. Someone, however, doesn't think so. There are many indications that that "someone" is Thomas Goolnik. Ten months after our article talking about the NY Times article about Google delinking their story about Thomas Goolnik's legal troubles with the FTC, we received a notification from Google that our article about the NY Times article had also been delinked under a RTBF request. So we wrote about that. A week later, we received a notice that this new article had also been delinked via a RTBF request.

In that post, in September of 2015, we were extremely clear to anyone from Google looking over that post that it was not about Goolnik's earlier activities (which we still believed were in the public's interest), but specifically about Thomas Goolnik's current actions -- specifically an action to abuse the RTBF process to try to hide the fact that he was credibly accused by the FTC of unfair or deceptive practices, leading to a substantial settlement. Since Google had already memory holed two of our articles on the subject, we even included "a special note to the Google RTBF reviewer reading" that post:

We are purposely not mentioning the details of the original story that Thomas Goolnik would no longer like to be associated with. Even if you believe that information is no longer relevant, this article does not discuss that. Instead, it discusses newsworthy and relevant information about Thomas Goolnik today, which is that he's filing a series of right to be forgotten requests to Google on any story that mentions his attempts to use the RTBF to delete his history. The original EU ruling clearly states that that when a search engine is evaluating a RTBF request, that it should see if the data is "inadequate, irrelevant or no longer relevant, or excessive in relation to the purposes for which they were processed and in the light of the time that has elapsed." This is not about irrelevant information from the past. This is about what appears to have happened this week or last.

Anyway, on Wednesday, three years later, we received... a new notification, that that third article had now been delinked under a RTBF request.

To: Webmaster of https://www.techdirt.com/,

Due to a request under data protection law in Europe, Google can no longer show one or more pages from your site in Google Search results. This only affects responses to some search queries for names or other personal identifiers that might appear on your pages. Only results on European versions of Google are affected. No action is required from you.

Who could possibly want to make such a request? There would be substantial evidence that it is Thomas Goolnik. While Google does not name who specifically made the requests, the fact that every post we've ever had mentioning Thomas Goolnik (minus this one... so far) ends up getting delinked in Google provides pretty strong clues that Thomas Goolnik is continuing to use highly questionable RTBF claims to try to delete news coverage of his history and his recent actions.

Once again, if you are a Google RTBF reviewer there is no reason under either the original RTBF rules or the GDPR right to erasure rules that this article should be delinked from anyone's name, but especially Thomas Goolnik's. It is about public, relevant, newsworthy information concerning Thomas Goolnik, including his ongoing attempts to use the right to be forgotten to erase a substantial legal settlement he had with the FTC concerning "unfair or deceptive practices" which makes its continued existence very much in the public interest.

And, if you're Thomas Goolnik reading this: stop it.

Filed Under: europe, free speech, ftc, gdpr, hiding news, news, right to be forgotten, rtbf, thomas goolnik, thomas goolnik thomas goolnik, thomas goolnik thomas goolnik thomas goolnik
Companies: google

Spanish Court Moves Forward With Prosecution Of Man Who Offended A Bunch Of Religious Lawyers

from the priming-itself-for-another-Inquisition dept

Spain's speech laws continue to be a nightmare. What started out as merely terrible has progressively gotten worse over the years as the government continues to strip protection from speech for the stupidest of reasons. The country's laws against hate speech have resulted in the prosecution of comedians, artists, and critics of the government. The laws forbidding speech supporting terrorism have seen more of the same locked up as jokes about a politician's assassination were determined to be promoting an "unhealthy humoristic environment" and "justifying terrorism."

Yes, the Spanish government gets to decide what's funny in Spain. It also apparently gets to decide how offended followers of certain faiths will be when dead/imaginary religious figures are disparaged on social media. Thanks to Spain's insane laws, a complaint from a religious group is enough to get someone arrested.

That someone is an actor and activist who made the mistake of saying nasty things about Jesus and his mom.

A Madrid judge has decided to press ahead with a court case involving Spanish actor and activist Willy Toledo, in which he is accused of offending religious sentiments by insulting God and the Virgin Mary in messages posted on Facebook.

Toledo was arrested on September 13 on orders from the judge, after he failed to appear in court on two prior occasions to answer questions about the case in a preliminary probe. After spending a night in the cells, and then appearing before the judge the next morning, he was released.

Technically, Toledo's arrest is due to his failure to appear in court. But that "failure" was due to Toledo's belief he had committed no crime. A legal complaint by the Spanish Association of Christian Lawyers says otherwise. This complaint was ignored by Toledo, resulting in a failure-to-appear arrest.

Here's what prompted the Christian Lawyers into action: Toledo's response to the arrest of three women for staging their own religious procession featuring a giant model of female genitalia. (Language NSFW)

In his comments, Toledo said: “I shit on God and have enough shit left over to shit on the dogma of the holiness and virginity of the Virgin Mary. This country is unbearably shameful. I’m disgusted. Go fuck yourselves. Long live the Insubordinate Pussy.”

The Christian law group said this comment "offended religious sentiment." Instead of being told to GTFO, the court decided to move forward with the case. Unfortunately for citizens of Spain, this insane-looking legal charge is actually legitimate.

Article 525 of the Spanish Criminal Code sets out monetary fines for those who offend the feelings of the members of a religious confession by “publicly disparaging their dogmas, beliefs, rites or ceremonies.”

Having finally faced a judge (against his will), Toledo is now facing the possibility of being fined for annoying an association of lawyers and disparaging their chosen religious beliefs. The judge says this comment is "potentially offensive," which seems to be enough to follow through on prosecution. It's also "devoid of any critical sense," which means judges in Spain know "legitimate" criticism when they see it.

Toledo won't have to spend any more time in jail (provided he shows up for future court dates…) but he'll be out the money spent to defend himself and possibly a whole lot more if the court decides figuratively shitting on religious figures is a criminal violation.

The Christian lawyers believe this is the most righteous outcome. In its statement to El Pais, a spokesperson said Toledo has repeatedly delivered "deliberate and intense attacks" against a concept valued by everyone in this particular law association. How that makes it a crime worth prosecuting is beyond me, but if you've got a bunch of terrible laws on the book, they will be used by terrible people to harm their critics.

Filed Under: free speech, jokes, offense, spain, willy toledo

Chinese 'Rage Comic' Site First Victim Of Government's History-Rewriting 'Heroes And Martyrs' Law

from the we'll-tell-you-how-to-remember-us dept

The Chinese government is rewriting history in its own distorted self-image. It wants to distance itself from its unseemly past, so it's retconning history through selectively-edited educational material and blatant censorship. Sure, the Chinese government has never been shy about its desire to shut up those that don't agree with it, but a recent "heroes and martyrs" law forbids disparaging long dead political and military figures.

The government alone will decide how much praise must be slathered on designated "heroes and martyrs." Criticism has been banned, so citizens are at least clear on that aspect. The law went into effect on May 1st, immediately leading to the ban of a Chinese "rage comic" site. This site is the first to be successfully sued under the new law.

The company behind the popular Chinese “rage comics” that were censored earlier this year for defaming a civil war general has been ordered to pay his relatives 100,000 yuan (US$14,500) in compensation.

Ye Ting fought for the Communists in the war and was jailed for five years after being captured by the opposition Nationalists. Soon after his release in 1946 he was killed in a plane crash.

Seven of Ye’s relatives filed a civil lawsuit for defamation against Xian Momo Information Technology in May, soon after it had been ordered to shut down Baozou Manhua, its online platform for rage comics which at the time was the biggest in the country.

Weirdly, the lawsuit centered on a poem written by Ye during his incarceration, which was featured in a video posted to the site spoofing abortion advertisements. According to the court, this "damaged" the reputation of a man who has been dead for 72 years. The law appears to have enacted some sort of hereditary right -- not completely unlike our nation's copyright terms -- which allows surviving family members to be legally offended on behalf of their dead relatives.

The court also decided the use of a poem in a spoof ad also harmed society in general, further cementing the ridiculousness of this censorial law and the government enforcing it.

Censorship in China is no laughing matter. The efforts are ridiculous, as are the justifications, but the government is dead serious about rehabilitating its image through direct control of the media, rewritten text books, and litigation. The law is likely to remain on the books forever, retroactively assuring the censors and despots of today's government will be shiny, happy heroes of the republic for years to come, forcibly respected by the children and grandchildren of today's silenced critics.

Filed Under: china, free speech, heroes and martyrs, rage comic, ye ting

Another Zombie Bad Idea That Just Won't Die: Copyright Small Claims Court Would Be A Free Speech Disaster

from the free-money-for-trolls dept

Going all the way back to 2012, we were highlighting why a copyright "small claims court" might be problematic. It's been in discussion for a long, long time. There are some legitimate complaints from copyright holders that bringing a federal case is kind of expensive. But that's because it should be expensive. When Congress got serious about this issue back in 2016, we wrote about how it would be a huge tool for copyright trolls. Earlier this year lawyer Cathy Gellis explained how the law was a total disaster, in that it was built with the assumption that all copyright claims are legitimate ones. But that's a laughable claim -- as copyright lawsuits (and threats of lawsuits) are quite frequently used either to just shake people down for money or as a way of suppressing free speech.

Make it even easier to sue over copyright, and you can bet that it will be used much more often -- meaning with significantly more abuse.

We also had a guest post from lawyer Robert S. Schwartz, highlighting a very important point. One of the reasons why, historically, copyright law hasn't been as big of a concern for suppressing free speech was because of copyright toleration. That is, even though basically everyone infringes on many people's copyrights every single day, we've mostly "tolerated" many infringements, because common sense tells us that the law couldn't have been meant for such things.

But, as we lower the barriers to filing a copyright lawsuit, we throw this "toleration" out the window, and, with it, we open the floodgates for censorship. Congress is, once again, considering creating a small claims court for copyright, HR 3945, or the CASE Act. The House Judiciary Committee turns copyright and speech into speeding tickets:

...copyright claims should not be bulk-processed like traffic tickets—especially not when statutory damages under the CASE Act are so much higher than in traffic court, requiring no proof of actual harm. And especially not when the case won’t be heard by an actual judge, one whose job description doesn’t place copyright at the center of the legal universe.

During the hearing, proponents of the bill constantly pointed to the bill’s “opt-out” mechanism as the be-all, end-all answer to this problem. That argument very much misses the point. Proposed changes to CASE would add a second notice to be served to someone being accused of infringement under the new regime. That means the first notice to opt-out would look like spam and the second would like a legal summons, which people don’t traditionally have the option of opting out of.

The average person, faced with being served in the same way they would be for a real lawsuit, is not going to understand that they can opt out of this system. When people have enough trouble understanding how to challenge false DMCA notices, how are they going to know how to respond to a confusing summons from Washington, D.C.?

One of the participants at the hearing, CCIA's Matt Schruers also highlighted how there's no clear evidence that there's some how a true "barrier" to filing copyright lawsuits today:

The idea that copyright plaintiffs are generally underserved by the existing remedies toolbox is somewhat difficult to reconcile with current data about copyright plaintiffs’ utilization of the federal court system. As I discussed with the Subcommittee in 2014, the statutory damages system has incentivized plaintiffs to inundate the federal litigation docket with instances of predatory enforcement, often referred to as copyright “trolling,” similar to the phenomenon of patent trolling. As one news publication noted, “[t]he existing digital copyright system has also led to claims of abuses, bizarre false positives, political censorship, and even fraud”. Some plaintiff misconduct that I identified in my 2014 testimony has led to criminal convictions.

Since we last discussed copyright remedies four years ago, these cases continue to clog federal courts. In 2014, I discussed the proliferation of multi-defendant John Doe complaints in federal copyright litigation, many of them involving pornography. At that time, recent research from Professor Matthew Sag found that these John Doe cases comprised the majority of copyright cases in over 20% of U.S. federal trial courts, and a third of federal copyright cases involved pornography. Today, the data shows that this problematic trend has continued. A 2018 article co-authored by Prof. Sag finds that John Doe suits by these serial litigants account for nearly half of all copyright cases filed in the U.S. from 2014 to 2016, including around 10,000 lawsuits, implicating hundreds of thousands of defendants,7 some wrongfully accused.

This is potentially a huge deal. While supporters of the bill keep insisting that this won't have a huge impact, all of the evidence of how copyright law is already abused suggests otherwise. We live in a world where, every new piece of creative work since 1978 automatically gets a copyright. And, just as that was happening, the internet was growing and building a global network of connected computers, which basically are "copying" content all the time. Some of that is clearly unfair to the creators/copyright holders of those works. But much of it is purely innocent and harmless. And we've survived in that we let most of that go. But opening up a small claims effort will drastically change the equation, leading to much greater attempts to censor.

Unfortunately, many in Congress don't seem to realize that this is already happening. As the EFF post notes:

Both some members of the House Judiciary Committee and entertainment industry witnesses during the hearing seem convinced that copyright trolls and the average small user who does not understand this process are “hypothetical.” Neither of these things is hypothetical. Lawsuits against individual Internet users alleging copyright infringement over BitTorrent networks—one of the most prolific types of copyright trolling—are just under half of all copyright lawsuits in the U.S. The plaintiffs in these cases pursue landlords and nursing home operators, elderly people with little or no knowledge of the Internet, and deployed military personnel. As is often the case in situations like these, the people hurt will not be major companies, but small businesses and individuals.

Copyright has long had an extremely uneasy balance with the First Amendment and free speech. The CASE Act and a small claims court for copyright would completely shift the way that balance works, massively tilting the scales away from free speech.

Filed Under: case act, copyright, copyright trolls, small claims