Interesting story, but a few things that make it a little less interesting:
I noticed that piracy isn't down that much. Rather, combined consumption is up. trying to figure out how much is a bit of a pain because the chart has no axis label, no scale. However, it's easy to see at the start that there were a total of about five "lines" of combined use, and today there are seven "lines" of combined use. So essentially, there is 40% more overall use, if you like.
It also doesn't take into consideration the move away from pure piracy (like file sharing) and on to things like streaming sites and Kodi boxes. Those things have certainly shifted plenty of action away from the old school torrent sites and download sites.
It seems much more likely that Netflix isn't taking as much away from piracy as it is tapping into a market that didn't exist to begin with, or who are transferring over from cable, video stores, and so on. The decline in piracy (however they measured it) isn't in keeping with the increase in Netflix (remember, 40% more!).
So good story, but written from the conclusion and worked backwards.
I am not surprised that you are disappointed with the ruling, as the court saw through pretty much every bit of smoke and mirrors there was out there.
First and foremost, is the concept of anonymous posting. I know for a fact that here on Techdirt, you track IP addresses, and use things like cookies and other commonly shared information to track your users, even when they post anonymously. There is potential that members (at least certain ones) are able to access this data.
Second, this is the internet. To get your message from point A to point B, you pass it through a number of hands. To confirm that your message was received, the reply has to be able to find the way back to you. So no matter what your anonymous status is only as safe as the websites (and intermediaries) you are using.
Third, and most important: The court clearly has figured out that a site that collects information and publishes is effectively a publisher, and not just a seller of photocopy machines or megaphones. That is a pretty significant ruling, and one that shows that the old "just a service" or "just a place people post" standard is perhaps losing it's standing.
Just like a lot of other things in the last little while, it appears that the legal system is slowly but surely catching up to the online world. Even Tim Berners-Lee can see it coming...
Re: Re: Re: "You might be breaking the law, you might not be. Only way to find out is the hard way."
"Not so, because as Mike pointed out above the law isn't targeting those that are that in violation of that section, it is targeting the sites those violating it use. A website wouldn't have to do any of the things listed there to face liability, they would merely need to be accused of 'knowingly assisting, supporting, or facilitating a violation' of those things, and that is a much lower bar, and brings back the question of what exactly those terms mean."
That doesn't appear to be correct. Read the laws. You can only by in violation by doing one of the specifically listed things, and knowingly giving space for them to occur.
"Well damn, why didn't I think of that? You are absolutely right, websites merely need to pay attention to the content submitted to their platforms so that they can spot the 'This ad is for an illegal service' line that all such user submissions must by law contain, and just reject those that have it. No wonder you've been so frustrated, the solution was staring everyone in the face all this time and we just couldn't see it before you pointed it out to us."
Wow, such snark! Seriously, prostitution is illegal (except in every county except Clark country in Nevada). Sites like Backpage were already filtering their sites enough to charge money for these ads (they know which one they are), so they clearly aren't hard to spot.
That one might slip through into general categories doesn't show a knowing participation in anything. You spot it, you remove it, and clearly you aren't knowingly supporting anything. "And of course you conflate two different things(digital platforms with physical publishers) again, as though there is just no possible reason the two might be treated differently because they're just so very similar, like bicycles and airplanes. There is a reason the two are treated differently, because they are fundamentally different, and treating them the same would have serious negative repercussions."
They are exactly the same UNTIL one chooses to forego editorial control over their publications. Saying "it's a website, therefore nobody can be responsible" ignores that the lack of control is by choice, and not be nature.
I think again you need to read the law as a whole. Each one of your statements is based on Mike's opinion of the law. However, he appears to have particularly ignored an overall reading of the law to instead pick at individual points without reference to the rest of the law. His readings are correct in that sense, but since the courts apply the law as a whole and not as individual statements without reference, I think his views may not be as accurate as he is pushing.
The truth is, Mike has a personal interest in maintain section 230 as a single solid and unyielding wall. So when he interprets the law, he will always get very animated and over the top for anything that puts even the smallest hole in that wall, and he will try with all of his skill to build up the combination of facts, facty-opinions, and pure opinion to make his point.
The law itself says otherwise. If you aren't breaking usc 18, 1591 (a) 1, then SESTA does not apply to you. If you are not offering knowing help to those who are doing so, then SESTA doesn't apply to you. If you become aware of someone using your platform / site to do so and you fail to take action (ie, remove the posts, discourage the behavior, delete the user, whatever) then yes, SESTA applies to you.
The civil part? It built on the same sort of standards (although the bar is lower as civil cases are).
Is SESTA potentially problems for wild west, uncontrolled websites? In a word, yes - and as it should be.
Yelp gets a "win" in the sense that they (and over site owners) have standing to complain about a warrant.
Anonymous posters get a win because posting your opinion, providing it isn't found to be actionable speech, will be protected - and your anonymous standing will be protected as well.
Everyone else gets a win because truly outrageous speech, which under any other circumstance would be actionable, now has a route by which that action can happen. Websites cannot use section 230 as a complete wall to stop any and all actions, those actions which appear to make the case get easily over the wall.
Re: Re: Re: Re: Re: Re: Re: Re: Re: 'Yeah they want to point a gun at you, but don't worry, they won't pull the trigger.'
Hi Troll!
I go after ideas and grandstanding. I don't go after people - unless of course, they are making it personal themselves. I often point out that Karl (as an example) seems to miss obvious things or writes very one sided stories. I don't know Karl from Adam, and I don't really care to. He is just another writer with an axe to grind. But I always discuss what he is writing about!
I don't post at Torrentfreak, never had. I don't like the shared comment system (it tracks you site to site, which isn't a good thing) so I decline to take part in their site. It would be pretty hard to lower the discussion over there, IMHO, nor would it be my intention.
It's actually the point where the democratic process meets lazy thinking people, who are swayed by sloganeering and "our team" crap. Us versus them is way easier to explain to people than your local needs expressed by someone who represents you and won't just blindly follow a party flag.
Americans elect these people, and follow the system, that is as democratic as it gets!
Unless of course they accept submissions from US writers, solicit donations from US users, etc. Making the material available in the US, even if they are not based in the US, may be enough for legal action.
Remember, traffic in minors for sex is a crime in almost every country and would likely rise to the levels of extradition. So it's not as easy to play hide and seek as you think!
Re: Re: Re: Re: Re: Re: Re: 'Yeah they want to point a gun at you, but don't worry, they won't pull the trigger.'
"Why does section 230 need weakening? All it does is protect the web site from the action of others, and does nothing to protect the web site owner from their own actions. It will become another tool for those who would censor the Internet."
The issue is that section 230 creates two problems that make it hard to enforce existing laws that apply to everyone except online services. It means that an online service can have a business model (sex worker ads) that does not legally work very well in the real world, and it also allows for essentially anonymous posting of these ads that create a legal dead end for authorities. As a side note, it would be very easy for a site to operate and claim all the ads on it were "user generated" while in fact creating them on their own. Section 230 would make it very hard (effectively impossible) to have a remedy to that sort of behavior.
"also increase the cost of running a web site"
Not really. As I have already shown, the law is restricted to violations of a single section of 1591 law, specifically (a) 1. That lists specifically the type of actions required to break the law. SESTA cannot be applied unless it's in conjunction with a violation of that law. So if you aren't running escort and sex worker ads, and moderate comments with links, it seems that nothing else changes (at all).
It's actually much better spelled out that anyone seems to want to admit.
Re: Re: Re: Re: Re: 'Yeah they want to point a gun at you, but don't worry, they won't pull the trigger.'
What I don't understand in all of this is a couple of things:
(1) you seem intent in your post on attacking me the person instead of the points, and more importantly
(2) why you haven't explain the law in it's entirety.
SESTA requires that you violate USC 18 section 1591 - (a) 1. When you talk about SESTA, you seem to take each item and each phrase in a sort of disconnected empty space, with no relation to the rest of the law. SESTA is really clear that it applies only to child sex workers and forced sex workers (ie, prostituted "owned" by a pimp). If you are not in violation of 1591 (a) 1, then the rest is effectively meaningless.
The civil action thing is the same. It doesn't create some sudden new type of liability that didn't exist before, it only removed the (IMHO overbroad) protections of section 230 which allowed sites like Backpage to do this sort of thing.
Taken on the whole, the law is very narrow and very restricted. It only removed section 230 protections if you are violating 1591 (a) 1, which states:
"(a) Whoever knowingly— (1) in or affecting interstate or foreign commerce, or within the special maritime and territorial jurisdiction of the United States, recruits, entices, harbors, transports, provides, obtains, advertises, maintains, patronizes, or solicits by any means a person;"
As I mentioned below, your website (and that of Wikipedia for that matter) do none of those things. Notice that it talks in terms of "a person", so each of those terms needs to have "a person" added to them for full effect.
So the only thing is "advertise a person". You don't recruit, entice, harbor, transport, provide, obtain, maintain, or patronize a person in the sex trafficking.
"You're out of date. "Knowing conduct" was in the original version, but removed from the manager's amendment."
Actually, that makes it even better. Participating in a venture makes it much clearer that you have to be working towards a common goal. Random posts on your site (that your moderate and delete) do not show any form of participation in a venture, in fact you would appear to be doing everything to avoid such participation.
As I said, simply holding for moderation posts with links in them would cure about 99.9% of this stuff up front.
"if you're the same troll I think you are"
How about you get over the concept of "troll" and keep writing about the ideas like you did in most of the rest of your response. The personal attacks really lower the discussion. If you want everyone to play nice and talk ideas and not attack people, set the example yourself.
Re: "You might be breaking the law, you might not be. Only way to find out is the hard way."
"I'm not sure if I should be laughing or shaking my head in disbelief. You've gone from 'it's obvious/simple' to 'expecting it to be clear is crazy talk'. I certainly hope you at least drop your 'it's obvious what you need to do to avoid liability' claims going forth given this latest defense, as the two positions are not even remotely compatible."
Laws are generally not as clear as you seem to wish them to be. It's one of the reasons (as an example) that there are plenty of discussions around these parts about DMCA and willful false claims. The law says X, and the courts have set a pretty high bar based on it. The law itself is perhaps a bit vague, but the courts (as the generally do) erred on the side of using as high a standard as they feel the law allows.
"Of all the examples you could have given... 'Murder: The accused intended to kill the victim and did so'. 'Manslaughter: While the accused killed the victim, they did not intend to do so'."
Except that it's often a subject of debate in courts because it's a question of intent. Intent is the slippery thing of state of mind and a bunch of other things. There is no hard line, it's all grey. I don't know how you can handle that!
"I'm pretty sure the actual legal definition is a lot more precise than you are making it out to be, and for good reason, because the difference between those two is significant in legal matters. Likewise with dealing/personal use, I would be rather surprised if that line wasn't pretty clear as well, because again it matters."
Part of the problem I think you are having is that in legal terms, words have meanings and implications, not all of them are written into the law. Much of what is done in writing laws and pleadings before a court are done using certain words because, while they may have different meanings depending on how you take them, the courts have accepted one specific meaning to certain sequences and phrases. In following those rules, we avoid having every word and every nuance of laws subject to review. Much of the framework, even if not explicitly written for you in that specific law already exists as accepted phrases and sequences in law.
"A vague law is a sloppy, bad law, because it makes it difficult if not nearly impossible to know what is and is not in violation of it ahead of time, which effects what people feel they can do versus what they can't. "
See, I don't get that.
The law is (a) limited to sex trafficing ("to ensure vigorous enforcement of Federal criminal and civil law relating to sex trafficking"), and (b) limited to "sex trafficking of children" and "sex trafficking by force, threats of force, fraud, or coercion", and (c) "The term ‘participation in a venture’ means knowing conduct by an individual or entity, by any means, that assists, supports, or facilitates a violation of subsection"
So then you go look at 1591, section 1(a), which is what SESTA specifically points to, and it says:
"in or affecting interstate or foreign commerce, or within the special maritime and territorial jurisdiction of the United States, recruits, entices, harbors, transports, provides, obtains, advertises, maintains, patronizes, or solicits by any means a person"
So, lets go through the list. Websites don't recruit, they don't entice, they don't harbor, they don't transport, they don't provide, they don't obtain, they don't maintain, they don't patronize, and they don't solicit for underage sex.
So only thing left is advertise.
So now, we are down to a pretty narrow thing. Your "vague" law suddenly seems very, very specific, doesn't it?
So, based on this, it's pretty clear: Don't accept advertising for sex workers / prostitution.
See, part of the problem in this whole discussion is that you (and Mike, and others) are taking the law as little bits and pieces, without putting it all together. The law is limited to violations of Section 1591 1 (a).
Put in other terms, in order for SESTA to apply, your website would have to violate section 1591, 1 (a).
So the only place you are left to wonder is the definition of advertising. Now this is way more interesting. Is a post by an individual, a comment, or a new thread on a discussion board an advertisement or a publication? If I take the local Techdirt view, each writer is their own publisher. Every post on facebook, twitter, whatever is a "publication" by the original writer. It's not an advertisement, it's a personal publication.
On that basis, the only things that would be advertising would be things like banners, paid links, or (shock) classified ads.
Wow, the law is getting pretty narrow here!
My suggestion? Rather than going on another long rant, take the time to read SESTA, and read all that it points to. Place all the parts into the law, read the law as amended, and see what you have to do to break the law. It's actually pretty clear.
Oh, the civil actions? Doesn't really change anything. "Nothing in this section shall be construed to impair the enforcement or limit the application of section 1595 of title 18, United States Code." - this line is only to make it so, like in the real world, civil suits can proceed and are not impaired by anything in this law. It doesn't make it any easier to sue a website than to sue a print newspaper or inky ad rag. It just stops making it much harder.
Summary: The only question I can see is "is a comment advertising?". Without links (because you can easily ban links from user comments or send them to moderation for review first) it seems very unlikely that anything makes it up to the level of advertising. So, well... Hmmm.
Re: Re: Re: 'Yeah they want to point a gun at you, but don't worry, they won't pull the trigger.'
"You keep arguing that it's 'simple' and 'obvious' what would leave a site open to legal action and what wouldn't, yet you continually fail to provide the text to back this up and fall back on 'well it would probably work this way'."
Many laws are not explicit as to their exact application. What is murder versus manslaughter? They don't spell it out exactly, a given number of stabs doesn't suddenly cross the line.
The line between dealing drugs and personal use? Not specifically spelled out. It's the nature of the law.
You read the law, and look at what it means, and look where it lands.
If you think the law spells everything out in exact "this is black, this is white" then you live in bizarro world.
Re: Re: Re: 'Yeah they want to point a gun at you, but don't worry, they won't pull the trigger.'
The point is that we have been down the road before, and we know the result. You use to go on about how vague DMCA was, often on the very point of "knowledge" or "red flag knowledge" or whatever other terms came up. The courts ruled that "knowledge" wasn't some fuzzy "he mighta shoulda woulda known" but actual knowledge.
There is no reason to think that the courts would look at SESTA much differently. There will almost certainly be some litigation, but you can be sure as shooting that the litigation won't be over a single comment on Techdirt. It's going to be over the big boy sites like Backpage who have made a business from helping out the whore mongering community.
I also think that you are missing a big part of the SESTA deal here. SESTA isn't really by itself creating a "crime". What it's doing is removing the section 230 protections for a very narrow type of crime (promotion of prostitution), which then in turn allows the normal laws that apply everywhere except the internet to be applied.
The real term in play is "knowing conduct". The Model Penal Code uses this:
"Knowingly: the actor is practically certain that his conduct will lead to the result, or is aware to a high probability that his conduct is of a prohibited nature, or is aware to a high probability that the attendant circumstances exist."
That's a pretty high bar. Generally, just running a website that accepts comments wouldn't reach that bar. Setting up a "all underage whores post here" section would.
Now, as for the question of civil litigation, but even that is pretty well covered here. They still end up having to show knowledgeable conduct which is unlikely to be made on a regular website.
So I am left a little bit lost here. You know yourself (have actual knowledge) that you can be sued for anything at any time. Changes to section 230 to narrowly change the scope to stop protecting people who with knowledgeable conduct "facilitate traffickers in advertising the sale of unlawful sex acts with sex trafficking victims.". That seems pretty narrow, and requires not just an abstract knowledge but conduct as a result of that knowledge. It appears the moderating a forum isn't in that category at all - unless you intentionally leave the bad links up and promote them.
The only real risk appears to be in imputed knowledge. That for me e perhaps the more open door, but even that would require showing knowledgeable conduct, which isn't a low bar at all, no matter how you look at it.
Nom you need SESTA for exactly one thing, which is to get section 230 out of the way. Save for section 230, Backpage would have already been prosecuted.
Re: 'Yeah they want to point a gun at you, but don't worry, they won't pull the trigger.'
"Other than the fact that 'knowingly facilitating', terms which are not clearly defined(or defined at all as far as I can tell), opens a site up to liability under the bill, such that 'knowing' that your site/platform is 'facilitating' illegal content can be used against you, knowledge which moderation would show/strongly imply?"
Actually, facilitating in legal terms generally is set at the state level, but you can read this site for a good example:
Knowingly is also key here, but as we have seen with the Viacom / Youtube deal, the courts have a pretty high standard for knowing. Even though we all know youtube is full of copyright violating content. that level of "knowing" isn't enough.
"The word “knowingly” in law means consciously or with knowledge or complete understanding of the facts or circumstances. An individual is deemed to have acted knowingly in regard to a material element of an offense when."
Knowingly isn't "any knowledge or bit of knowledge" it's actually knowing in a specific term. It's for me the different between dealing with a spammer who posts "for a good time call judy 555-1212" and a site that sets up a "sex trade ads" section and charges money to post there.
"By all means, point out the text of the bill that clearly and unambiguously lays out what does and does not leave a site liable for content that might be posted, and what they have to do to avoid liability."
It's what Mike doesn't like to talk about, that terms like "knowingly" and "Facilitating" have meaning in legal terms, and the courts tend to use similar yardsticks when dealing with them. Mike has been very careful not to raise issues like the old "red flag knowledge" cases that he covered endlessly, which sort of proves that knowingly isn't any tiny scrap of knowledge, it's really knowing.
"You say they 'know' that what they are writing is baseless fearmongering, I say prove it. Show the part(s) of the bill that define what leaves a site open to being dragged to court"
Most laws have certain ambiguities in them. From RICO to immigration, there is always a way that the laws can be stretched or abused in either direction.
The previous attempts at prosecuting Backpage is a clear indication of where this law is going. Print mags, newspapers, and such that that run these sorts of escort ads have faced legal liability. Your community newspaper that had a careful worded "special words only pervs understand" ad didn't have problems. The building owner that removed the "for a good time call judy 555-1212" spray paint from his building didn't face prosecution.
What does a site need to do? Simply, don't pander to the sex trade. Know what the sex trade is, and knowing that many of the people working in it are not there of their own free will, it's an appropriate choice not to carry their ads, not to intentionally link to their sites, and not to intentionally allow their comments on your site. When you see their comments on their sites, in the exact same manner you would handle a child porn image, you remove it from your site, and potentially even contact authorities about it (if you so desire).
When you do those things, you are specifically knowingly NOT providing assistance, you are instead blocking them at every turn and taking steps to assure that your site isn't focused on helping illegal sex workers.
it's the basis of those terms in law, and the basis of how you and your site would look in front of the court.
You have explained to yourself exactly why the courts won't bite on a single comment. Moreover, there is nothing that suggests the moderating clearly spammy (and even sexual) comments would suddenly create liability.
Now allowing tens of thousands of those comments to build up and be left online, and perhaps creating a link to "great sex worker comments" might hit the mark.
Criminal facilitation is generally offering substantial or significant assistance in committing a felony.
As an example, save for section 230, what Backpage has been doing with sex ads would appear to meet the definition of significant assistance. Save for section 230, he would already be rotting in jail.
So when Mike (and a few others) write scary stories about a single comment suddenly tossing your site under the legal bus, they know it's just not the case. Even Backpage's egregious and obvious pandering to sex workers only just makes it to the line.
BoingBoing's intent is to profit from a clear copyright violation. They know the source (scanned images put on imgur, not Playboy), and they link to it because people will want to see the images and will also spend more time on BoingBoing.
They should knowledge and intent.
You are confusing the idea of publishing a story "some guy scanned all of the playboy centerfolds and illegal put them online" versus "here they are".
The story of the guy doing it wouldn't get them many readers. Linking to the images and making them the story itself, hoping people will share the story on social media and drive more users to Boingboing will.
The really, really big ad next to the story shows intent to profit from it. It's not hard to figure out.
Once again Karl, I think you can't see the virtual forest for all the trees... you almost grok the point, but you in the end miss it by getting hung up on how and now what.
The how you are worried about the "net neutrality". Franken chose a term which is common and active right now, much like any other buzz word using politician (or hack Techdirt writer) would do. He essentially used a term somewhat out of place to make a point and get your attention. It worked.
The WHAT is actually key here: The idea that certain companies, which dominate a marketplace (some would suggest are monopoly players) may end up being held to a higher standard, similar to what net neutrality would force on ISPs.
If Google has the vast majority of the search market (they do) and they as a result control where most people on the internet will go when searching for something, shouldn't they be more transparent and inclusive in doing so?
When you stop worrying about the words "net neutrality" and start thinking about it in terms of "how to deal with am monopoly player", it's a much more enlightened discussion.
"If one of the volunteers comes across links to sex trafficking and fails to remove them, does that mean all of Wikipedia has "knowledge"? "
I don't think so. Of course, if he then posts about it in the moderators discussion areas and others respond and discuss it without removal, then yes. There is point where too many people within the organization are aware.
Then again, it's predicated on an editor not removing a link to something inappropriate. Wiki is pretty good about policing their entries.
"Do all editors of Wikipedia now need to be deputized to respond to sex trafficking issues?"
Shouldn't they be already? There is little reason for any part of Wikipedia to link to escorts or sex workers promotional material. It's not a huge expectation for Wiki to ask the editors to be very slightly more vigilant than they already are.
"Does Wikipedia need to stop allowing volunteer editing (its entire basis of existing) and switch only to paid editors?"
No reason to. Again, Wikipedia would be much more at risk if they were not generally good at policing their site already. There is little or nothing that wiki does right now, without changes, that could lead to problems for them under SESTA.
Let's make it clear here: If a prosecutor wants to go after someone or some organization, even without the law particularly on their side, they will. Backpage and CL have dealt with it already.
Nothing in Wikipedia could be shown that they generally facilitate sex trafficking. The knowledge standard is in part based on the level of facilitation. Wikipedia doesn't make it easy to get links to ANYTHING on their site, everything is moderated and moderated again to be sure. There would be no facilitation. So the rest appears not to matter.
Good try. You actually thought about it, but you missed the point.
Agreeing with someone in general is one thing. You and I can agree that Earl Grey is the best tea, or that Heineken is perhaps the least desirable beer on the planet (after Fosters, I am told). However, we are unlikely to use the same words or to aim at exactly the same details of each to arrive at that conclusion.
Your fire example is way to simplistic, a 0 or 1. Yes or no. There is no grey.
Mike's posts and Wyden's quote are so similar, that you would think they were written by the same person. That usually comes from two people either working from the same set of notes (aka talking points) or that they have talked together and agreed on something.
On the post: Offering Good Legal Options Works: Interest In Netflix Outpaces Pirate Options In Brazil
I noticed that piracy isn't down that much. Rather, combined consumption is up. trying to figure out how much is a bit of a pain because the chart has no axis label, no scale. However, it's easy to see at the start that there were a total of about five "lines" of combined use, and today there are seven "lines" of combined use. So essentially, there is 40% more overall use, if you like.
It also doesn't take into consideration the move away from pure piracy (like file sharing) and on to things like streaming sites and Kodi boxes. Those things have certainly shifted plenty of action away from the old school torrent sites and download sites.
It seems much more likely that Netflix isn't taking as much away from piracy as it is tapping into a market that didn't exist to begin with, or who are transferring over from cable, video stores, and so on. The decline in piracy (however they measured it) isn't in keeping with the increase in Netflix (remember, 40% more!).
So good story, but written from the conclusion and worked backwards.
On the post: Ninth Circuit Lets Us See Its Glassdoor Ruling, And It's Terrible
First and foremost, is the concept of anonymous posting. I know for a fact that here on Techdirt, you track IP addresses, and use things like cookies and other commonly shared information to track your users, even when they post anonymously. There is potential that members (at least certain ones) are able to access this data.
Second, this is the internet. To get your message from point A to point B, you pass it through a number of hands. To confirm that your message was received, the reply has to be able to find the way back to you. So no matter what your anonymous status is only as safe as the websites (and intermediaries) you are using.
Third, and most important: The court clearly has figured out that a site that collects information and publishes is effectively a publisher, and not just a seller of photocopy machines or megaphones. That is a pretty significant ruling, and one that shows that the old "just a service" or "just a place people post" standard is perhaps losing it's standing.
Just like a lot of other things in the last little while, it appears that the legal system is slowly but surely catching up to the online world. Even Tim Berners-Lee can see it coming...
https://www.theguardian.com/technology/2017/nov/15/tim-berners-lee-world-wide-web-net-neutr ality
Enjoy!
On the post: Wikipedia Warns That SESTA Could Destroy Wikipedia
Re: Re: Re: "You might be breaking the law, you might not be. Only way to find out is the hard way."
That doesn't appear to be correct. Read the laws. You can only by in violation by doing one of the specifically listed things, and knowingly giving space for them to occur.
"Well damn, why didn't I think of that? You are absolutely right, websites merely need to pay attention to the content submitted to their platforms so that they can spot the 'This ad is for an illegal service' line that all such user submissions must by law contain, and just reject those that have it. No wonder you've been so frustrated, the solution was staring everyone in the face all this time and we just couldn't see it before you pointed it out to us."
Wow, such snark! Seriously, prostitution is illegal (except in every county except Clark country in Nevada). Sites like Backpage were already filtering their sites enough to charge money for these ads (they know which one they are), so they clearly aren't hard to spot.
That one might slip through into general categories doesn't show a knowing participation in anything. You spot it, you remove it, and clearly you aren't knowingly supporting anything.
"And of course you conflate two different things(digital platforms with physical publishers) again, as though there is just no possible reason the two might be treated differently because they're just so very similar, like bicycles and airplanes. There is a reason the two are treated differently, because they are fundamentally different, and treating them the same would have serious negative repercussions."
They are exactly the same UNTIL one chooses to forego editorial control over their publications. Saying "it's a website, therefore nobody can be responsible" ignores that the lack of control is by choice, and not be nature.
I think again you need to read the law as a whole. Each one of your statements is based on Mike's opinion of the law. However, he appears to have particularly ignored an overall reading of the law to instead pick at individual points without reference to the rest of the law. His readings are correct in that sense, but since the courts apply the law as a whole and not as individual statements without reference, I think his views may not be as accurate as he is pushing.
The truth is, Mike has a personal interest in maintain section 230 as a single solid and unyielding wall. So when he interprets the law, he will always get very animated and over the top for anything that puts even the smallest hole in that wall, and he will try with all of his skill to build up the combination of facts, facty-opinions, and pure opinion to make his point.
The law itself says otherwise. If you aren't breaking usc 18, 1591 (a) 1, then SESTA does not apply to you. If you are not offering knowing help to those who are doing so, then SESTA doesn't apply to you. If you become aware of someone using your platform / site to do so and you fail to take action (ie, remove the posts, discourage the behavior, delete the user, whatever) then yes, SESTA applies to you.
The civil part? It built on the same sort of standards (although the bar is lower as civil cases are).
Is SESTA potentially problems for wild west, uncontrolled websites? In a word, yes - and as it should be.
On the post: California Appeals Court Issues A Ruling That Manages To Both Protect And Undermine Online Speech
Balanced?
Yelp gets a "win" in the sense that they (and over site owners) have standing to complain about a warrant.
Anonymous posters get a win because posting your opinion, providing it isn't found to be actionable speech, will be protected - and your anonymous standing will be protected as well.
Everyone else gets a win because truly outrageous speech, which under any other circumstance would be actionable, now has a route by which that action can happen. Websites cannot use section 230 as a complete wall to stop any and all actions, those actions which appear to make the case get easily over the wall.
I think it's win, win, win.
On the post: Wikipedia Warns That SESTA Could Destroy Wikipedia
Re: Re: Re: Re: Re: Re: Re: Re: Re: 'Yeah they want to point a gun at you, but don't worry, they won't pull the trigger.'
I go after ideas and grandstanding. I don't go after people - unless of course, they are making it personal themselves. I often point out that Karl (as an example) seems to miss obvious things or writes very one sided stories. I don't know Karl from Adam, and I don't really care to. He is just another writer with an axe to grind. But I always discuss what he is writing about!
I don't post at Torrentfreak, never had. I don't like the shared comment system (it tracks you site to site, which isn't a good thing) so I decline to take part in their site. It would be pretty hard to lower the discussion over there, IMHO, nor would it be my intention.
On the post: With Congressional Leaders Blocking Serious Reform, Tepid Section 702 Reform Bill Moves Forward
Re: Re:
Americans elect these people, and follow the system, that is as democratic as it gets!
On the post: With Congressional Leaders Blocking Serious Reform, Tepid Section 702 Reform Bill Moves Forward
In a democracy, having a minority of people on your side of something generally leads to nothing. It's the way democracy works.
If they continue to toss out partisan amendments, things will end up being a party line vote, nothing more and nothing less.
On the post: Wikipedia Warns That SESTA Could Destroy Wikipedia
Re:
Remember, traffic in minors for sex is a crime in almost every country and would likely rise to the levels of extradition. So it's not as easy to play hide and seek as you think!
On the post: Wikipedia Warns That SESTA Could Destroy Wikipedia
Re: Re: Re: Re: Re: Re: Re: 'Yeah they want to point a gun at you, but don't worry, they won't pull the trigger.'
The issue is that section 230 creates two problems that make it hard to enforce existing laws that apply to everyone except online services. It means that an online service can have a business model (sex worker ads) that does not legally work very well in the real world, and it also allows for essentially anonymous posting of these ads that create a legal dead end for authorities. As a side note, it would be very easy for a site to operate and claim all the ads on it were "user generated" while in fact creating them on their own. Section 230 would make it very hard (effectively impossible) to have a remedy to that sort of behavior.
"also increase the cost of running a web site"
Not really. As I have already shown, the law is restricted to violations of a single section of 1591 law, specifically (a) 1. That lists specifically the type of actions required to break the law. SESTA cannot be applied unless it's in conjunction with a violation of that law. So if you aren't running escort and sex worker ads, and moderate comments with links, it seems that nothing else changes (at all).
It's actually much better spelled out that anyone seems to want to admit.
On the post: Wikipedia Warns That SESTA Could Destroy Wikipedia
Re: Re: Re: Re: Re: 'Yeah they want to point a gun at you, but don't worry, they won't pull the trigger.'
(1) you seem intent in your post on attacking me the person instead of the points, and more importantly
(2) why you haven't explain the law in it's entirety.
SESTA requires that you violate USC 18 section 1591 - (a) 1. When you talk about SESTA, you seem to take each item and each phrase in a sort of disconnected empty space, with no relation to the rest of the law. SESTA is really clear that it applies only to child sex workers and forced sex workers (ie, prostituted "owned" by a pimp). If you are not in violation of 1591 (a) 1, then the rest is effectively meaningless.
The civil action thing is the same. It doesn't create some sudden new type of liability that didn't exist before, it only removed the (IMHO overbroad) protections of section 230 which allowed sites like Backpage to do this sort of thing.
Taken on the whole, the law is very narrow and very restricted. It only removed section 230 protections if you are violating 1591 (a) 1, which states:
"(a) Whoever knowingly—
(1) in or affecting interstate or foreign commerce, or within the special maritime and territorial jurisdiction of the United States, recruits, entices, harbors, transports, provides, obtains, advertises, maintains, patronizes, or solicits by any means a person;"
As I mentioned below, your website (and that of Wikipedia for that matter) do none of those things. Notice that it talks in terms of "a person", so each of those terms needs to have "a person" added to them for full effect.
So the only thing is "advertise a person". You don't recruit, entice, harbor, transport, provide, obtain, maintain, or patronize a person in the sex trafficking.
"You're out of date. "Knowing conduct" was in the original version, but removed from the manager's amendment."
Actually, that makes it even better. Participating in a venture makes it much clearer that you have to be working towards a common goal. Random posts on your site (that your moderate and delete) do not show any form of participation in a venture, in fact you would appear to be doing everything to avoid such participation.
As I said, simply holding for moderation posts with links in them would cure about 99.9% of this stuff up front.
"if you're the same troll I think you are"
How about you get over the concept of "troll" and keep writing about the ideas like you did in most of the rest of your response. The personal attacks really lower the discussion. If you want everyone to play nice and talk ideas and not attack people, set the example yourself.
On the post: Wikipedia Warns That SESTA Could Destroy Wikipedia
Re: "You might be breaking the law, you might not be. Only way to find out is the hard way."
Laws are generally not as clear as you seem to wish them to be. It's one of the reasons (as an example) that there are plenty of discussions around these parts about DMCA and willful false claims. The law says X, and the courts have set a pretty high bar based on it. The law itself is perhaps a bit vague, but the courts (as the generally do) erred on the side of using as high a standard as they feel the law allows.
"Of all the examples you could have given... 'Murder: The accused intended to kill the victim and did so'. 'Manslaughter: While the accused killed the victim, they did not intend to do so'."
Except that it's often a subject of debate in courts because it's a question of intent. Intent is the slippery thing of state of mind and a bunch of other things. There is no hard line, it's all grey. I don't know how you can handle that!
"I'm pretty sure the actual legal definition is a lot more precise than you are making it out to be, and for good reason, because the difference between those two is significant in legal matters. Likewise with dealing/personal use, I would be rather surprised if that line wasn't pretty clear as well, because again it matters."
Part of the problem I think you are having is that in legal terms, words have meanings and implications, not all of them are written into the law. Much of what is done in writing laws and pleadings before a court are done using certain words because, while they may have different meanings depending on how you take them, the courts have accepted one specific meaning to certain sequences and phrases. In following those rules, we avoid having every word and every nuance of laws subject to review. Much of the framework, even if not explicitly written for you in that specific law already exists as accepted phrases and sequences in law.
"A vague law is a sloppy, bad law, because it makes it difficult if not nearly impossible to know what is and is not in violation of it ahead of time, which effects what people feel they can do versus what they can't. "
See, I don't get that.
The law is (a) limited to sex trafficing ("to ensure vigorous enforcement of Federal criminal and civil law relating to sex trafficking"), and (b) limited to "sex trafficking of children" and "sex trafficking by force, threats of force, fraud, or coercion", and (c) "The term ‘participation in a venture’ means knowing conduct by an individual or entity, by any means, that assists, supports, or facilitates a violation of subsection"
So then you go look at 1591, section 1(a), which is what SESTA specifically points to, and it says:
"in or affecting interstate or foreign commerce, or within the special maritime and territorial jurisdiction of the United States, recruits, entices, harbors, transports, provides, obtains, advertises, maintains, patronizes, or solicits by any means a person"
So, lets go through the list. Websites don't recruit, they don't entice, they don't harbor, they don't transport, they don't provide, they don't obtain, they don't maintain, they don't patronize, and they don't solicit for underage sex.
So only thing left is advertise.
So now, we are down to a pretty narrow thing. Your "vague" law suddenly seems very, very specific, doesn't it?
So, based on this, it's pretty clear: Don't accept advertising for sex workers / prostitution.
See, part of the problem in this whole discussion is that you (and Mike, and others) are taking the law as little bits and pieces, without putting it all together. The law is limited to violations of Section 1591 1 (a).
Put in other terms, in order for SESTA to apply, your website would have to violate section 1591, 1 (a).
So the only place you are left to wonder is the definition of advertising. Now this is way more interesting. Is a post by an individual, a comment, or a new thread on a discussion board an advertisement or a publication? If I take the local Techdirt view, each writer is their own publisher. Every post on facebook, twitter, whatever is a "publication" by the original writer. It's not an advertisement, it's a personal publication.
On that basis, the only things that would be advertising would be things like banners, paid links, or (shock) classified ads.
Wow, the law is getting pretty narrow here!
My suggestion? Rather than going on another long rant, take the time to read SESTA, and read all that it points to. Place all the parts into the law, read the law as amended, and see what you have to do to break the law. It's actually pretty clear.
Oh, the civil actions? Doesn't really change anything. "Nothing in this section shall be construed to impair the enforcement or limit the application of section 1595 of title 18, United States Code." - this line is only to make it so, like in the real world, civil suits can proceed and are not impaired by anything in this law. It doesn't make it any easier to sue a website than to sue a print newspaper or inky ad rag. It just stops making it much harder.
Summary: The only question I can see is "is a comment advertising?". Without links (because you can easily ban links from user comments or send them to moderation for review first) it seems very unlikely that anything makes it up to the level of advertising. So, well... Hmmm.
Enjoy your reading.
On the post: Wikipedia Warns That SESTA Could Destroy Wikipedia
Re: Re: Re: 'Yeah they want to point a gun at you, but don't worry, they won't pull the trigger.'
Many laws are not explicit as to their exact application. What is murder versus manslaughter? They don't spell it out exactly, a given number of stabs doesn't suddenly cross the line.
The line between dealing drugs and personal use? Not specifically spelled out. It's the nature of the law.
You read the law, and look at what it means, and look where it lands.
If you think the law spells everything out in exact "this is black, this is white" then you live in bizarro world.
On the post: Wikipedia Warns That SESTA Could Destroy Wikipedia
Re: Re: Re: 'Yeah they want to point a gun at you, but don't worry, they won't pull the trigger.'
There is no reason to think that the courts would look at SESTA much differently. There will almost certainly be some litigation, but you can be sure as shooting that the litigation won't be over a single comment on Techdirt. It's going to be over the big boy sites like Backpage who have made a business from helping out the whore mongering community.
I also think that you are missing a big part of the SESTA deal here. SESTA isn't really by itself creating a "crime". What it's doing is removing the section 230 protections for a very narrow type of crime (promotion of prostitution), which then in turn allows the normal laws that apply everywhere except the internet to be applied.
The real term in play is "knowing conduct". The Model Penal Code uses this:
"Knowingly: the actor is practically certain that his conduct will lead to the result, or is aware to a high probability that his conduct is of a prohibited nature, or is aware to a high probability that the attendant circumstances exist."
That's a pretty high bar. Generally, just running a website that accepts comments wouldn't reach that bar. Setting up a "all underage whores post here" section would.
Now, as for the question of civil litigation, but even that is pretty well covered here. They still end up having to show knowledgeable conduct which is unlikely to be made on a regular website.
So I am left a little bit lost here. You know yourself (have actual knowledge) that you can be sued for anything at any time. Changes to section 230 to narrowly change the scope to stop protecting people who with knowledgeable conduct "facilitate traffickers in advertising the sale of unlawful sex acts with sex trafficking victims.". That seems pretty narrow, and requires not just an abstract knowledge but conduct as a result of that knowledge. It appears the moderating a forum isn't in that category at all - unless you intentionally leave the bad links up and promote them.
The only real risk appears to be in imputed knowledge. That for me e perhaps the more open door, but even that would require showing knowledgeable conduct, which isn't a low bar at all, no matter how you look at it.
So what is the risk, again?
On the post: Wikipedia Warns That SESTA Could Destroy Wikipedia
Re: Re: Re: Re:
On the post: Wikipedia Warns That SESTA Could Destroy Wikipedia
Re: 'Yeah they want to point a gun at you, but don't worry, they won't pull the trigger.'
Actually, facilitating in legal terms generally is set at the state level, but you can read this site for a good example:
https://definitions.uslegal.com/c/criminal-facilitation/
Knowingly is also key here, but as we have seen with the Viacom / Youtube deal, the courts have a pretty high standard for knowing. Even though we all know youtube is full of copyright violating content. that level of "knowing" isn't enough.
"The word “knowingly” in law means consciously or with knowledge or complete understanding of the facts or circumstances. An individual is deemed to have acted knowingly in regard to a material element of an offense when."
Knowingly isn't "any knowledge or bit of knowledge" it's actually knowing in a specific term. It's for me the different between dealing with a spammer who posts "for a good time call judy 555-1212" and a site that sets up a "sex trade ads" section and charges money to post there.
"By all means, point out the text of the bill that clearly and unambiguously lays out what does and does not leave a site liable for content that might be posted, and what they have to do to avoid liability."
It's what Mike doesn't like to talk about, that terms like "knowingly" and "Facilitating" have meaning in legal terms, and the courts tend to use similar yardsticks when dealing with them. Mike has been very careful not to raise issues like the old "red flag knowledge" cases that he covered endlessly, which sort of proves that knowingly isn't any tiny scrap of knowledge, it's really knowing.
"You say they 'know' that what they are writing is baseless fearmongering, I say prove it. Show the part(s) of the bill that define what leaves a site open to being dragged to court"
Most laws have certain ambiguities in them. From RICO to immigration, there is always a way that the laws can be stretched or abused in either direction.
The previous attempts at prosecuting Backpage is a clear indication of where this law is going. Print mags, newspapers, and such that that run these sorts of escort ads have faced legal liability. Your community newspaper that had a careful worded "special words only pervs understand" ad didn't have problems. The building owner that removed the "for a good time call judy 555-1212" spray paint from his building didn't face prosecution.
What does a site need to do? Simply, don't pander to the sex trade. Know what the sex trade is, and knowing that many of the people working in it are not there of their own free will, it's an appropriate choice not to carry their ads, not to intentionally link to their sites, and not to intentionally allow their comments on your site. When you see their comments on their sites, in the exact same manner you would handle a child porn image, you remove it from your site, and potentially even contact authorities about it (if you so desire).
When you do those things, you are specifically knowingly NOT providing assistance, you are instead blocking them at every turn and taking steps to assure that your site isn't focused on helping illegal sex workers.
it's the basis of those terms in law, and the basis of how you and your site would look in front of the court.
On the post: Wikipedia Warns That SESTA Could Destroy Wikipedia
Re: Re:
You have explained to yourself exactly why the courts won't bite on a single comment. Moreover, there is nothing that suggests the moderating clearly spammy (and even sexual) comments would suddenly create liability.
Now allowing tens of thousands of those comments to build up and be left online, and perhaps creating a link to "great sex worker comments" might hit the mark.
Criminal facilitation is generally offering substantial or significant assistance in committing a felony.
As an example, save for section 230, what Backpage has been doing with sex ads would appear to meet the definition of significant assistance. Save for section 230, he would already be rotting in jail.
So when Mike (and a few others) write scary stories about a single comment suddenly tossing your site under the legal bus, they know it's just not the case. Even Backpage's egregious and obvious pandering to sex workers only just makes it to the line.
On the post: Playboy Sues BoingBoing For Linking To Collection Of Centerfold Pictures
Re: Re: Re: Re: BoingBoing clearly wrong
BoingBoing's intent is to profit from a clear copyright violation. They know the source (scanned images put on imgur, not Playboy), and they link to it because people will want to see the images and will also spend more time on BoingBoing.
They should knowledge and intent.
You are confusing the idea of publishing a story "some guy scanned all of the playboy centerfolds and illegal put them online" versus "here they are".
The story of the guy doing it wouldn't get them many readers. Linking to the images and making them the story itself, hoping people will share the story on social media and drive more users to Boingboing will.
The really, really big ad next to the story shows intent to profit from it. It's not hard to figure out.
On the post: Dear Al Franken: Net Neutrality Is Not A Magic Wand You Can Wave At Any Company
Step back and understand
The how you are worried about the "net neutrality". Franken chose a term which is common and active right now, much like any other buzz word using politician (or hack Techdirt writer) would do. He essentially used a term somewhat out of place to make a point and get your attention. It worked.
The WHAT is actually key here: The idea that certain companies, which dominate a marketplace (some would suggest are monopoly players) may end up being held to a higher standard, similar to what net neutrality would force on ISPs.
If Google has the vast majority of the search market (they do) and they as a result control where most people on the internet will go when searching for something, shouldn't they be more transparent and inclusive in doing so?
When you stop worrying about the words "net neutrality" and start thinking about it in terms of "how to deal with am monopoly player", it's a much more enlightened discussion.
On the post: Wikipedia Warns That SESTA Could Destroy Wikipedia
Some possible answers:
I don't think so. Of course, if he then posts about it in the moderators discussion areas and others respond and discuss it without removal, then yes. There is point where too many people within the organization are aware.
Then again, it's predicated on an editor not removing a link to something inappropriate. Wiki is pretty good about policing their entries.
"Do all editors of Wikipedia now need to be deputized to respond to sex trafficking issues?"
Shouldn't they be already? There is little reason for any part of Wikipedia to link to escorts or sex workers promotional material. It's not a huge expectation for Wiki to ask the editors to be very slightly more vigilant than they already are.
"Does Wikipedia need to stop allowing volunteer editing (its entire basis of existing) and switch only to paid editors?"
No reason to. Again, Wikipedia would be much more at risk if they were not generally good at policing their site already. There is little or nothing that wiki does right now, without changes, that could lead to problems for them under SESTA.
Let's make it clear here: If a prosecutor wants to go after someone or some organization, even without the law particularly on their side, they will. Backpage and CL have dealt with it already.
Nothing in Wikipedia could be shown that they generally facilitate sex trafficking. The knowledge standard is in part based on the level of facilitation. Wikipedia doesn't make it easy to get links to ANYTHING on their site, everything is moderated and moderated again to be sure. There would be no facilitation. So the rest appears not to matter.
On the post: Ron Wyden Puts A Hold On SESTA And Warns About Its Dangers
Re: Re: Re: Re:
Agreeing with someone in general is one thing. You and I can agree that Earl Grey is the best tea, or that Heineken is perhaps the least desirable beer on the planet (after Fosters, I am told). However, we are unlikely to use the same words or to aim at exactly the same details of each to arrive at that conclusion.
Your fire example is way to simplistic, a 0 or 1. Yes or no. There is no grey.
Mike's posts and Wyden's quote are so similar, that you would think they were written by the same person. That usually comes from two people either working from the same set of notes (aka talking points) or that they have talked together and agreed on something.
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