• Tag Archives 1st Amendment

  • Government Pressure Shutters Backpage’s Adult Services Section

    Posted on by Azrael Comment

    Succumbing to years of government pressure, the online classified ads website Backpage.com has shut down its adult services section. Just like Craigslist before it, Backpage faced the difficult choice of censoring an entire forum for online speech rather than continue to endure the costly onslaught of state and federal government efforts seeking to hold it responsible for the illegal activity of some of its users.

    The announcement came on the eve of a hearing by the Senate Permanent Subcommittee on Investigations (PSI). The hearing was the backdrop for the release of a committee report [PDF] alleging [PDF] that Backpage knew that its website was being used to post ads for illegal prostitution and child sex trafficking, and directly edited such ads to make their illegality less conspicuous or flagged for the posters how to do so themselves.

    While acknowledging the horrific nature of sex trafficking, EFF has participated in several cases to remind courts about the importance of preserving strong legal protection under the First Amendment and Section 230 (47 U.S.C. § 230) for Internet intermediaries.

    For example, we were counsel for the Internet Archive in two cases in which Backpage was co-plaintiff, one in Washington state and the other in New Jersey, challenging state laws that sought to hold online companies responsible for hosting third-party ads for illegal sexual transactions. We successfully argued that the laws were invalid under the First Amendment and Section 230.

    Section 230 is the two-decade old statute passed by Congress to promote online free speech and innovation by immunizing (with certain exceptions) Internet intermediaries from liability for illegal content created or posted by their users. Section 230 immunity holds as long as the companies did not themselves create the illegal content, while editing user-generated content is permitted by Section 230 as long as the editing itself does not make the content illegal.

    We’ve also filed amicus briefs in support of strong legal protections for Internet intermediaries. We filed an amicus brief in an emotionally tough Massachusetts case against Backpage brought by young women trafficked for sex as minors via the website. The court rightly dismissed the case, largely adopting our Section 230 arguments.

    Much of Backpage’s fights have hinged on defending fundamental First Amendment rights online. We submitted an amicus brief in a case where Backpage successfully challenged the “campaign of suffocation” by an Illinois sheriff who had illegally coerced major credit card companies to stop doing business with Backpage. Recently, we submitted an amicus brief in a case where Backpage is challenging some of the subpoenas issued by PSI, arguing that the committee’s inquiry into Backpage’s ad moderating practices amounts to improper government interference into core editorial functions protected by the First Amendment—something we also argued Sen. Thune did in relation to Facebook’s “trending” news stories.

    During the PSI hearing, senators expressed their disdain for Backpage’s reliance on Section 230 and the First Amendment. Chairman Rob Portman (R-OH) said that Backpage’s invocation of Section 230 is a “fraud on courts, on victims, and on the public.” Ranking Member Claire McCaskill (D-MO) exclaimed, “This investigation is not about curbing First Amendment rights. Give me a break!” And Sen. Heidi Heitkamp (D-ND) said that Backpage has “the audacity to hide behind the First Amendment.”

    EFF and other civil liberties organizations are all too familiar with the fact that First Amendment rights are often championed by those accused of disseminating unpopular or harmful speech. And when First Amendment rights are weakened for one unsavory person or entity, First Amendment rights become weakened for everyone.

    Most disturbing during the hearing, Chairman Portman said that the committee will explore “legislative remedies” to address the problem of online sex trafficking. This surely means a weakening of Section 230 protection for Internet intermediaries, which EFF strongly opposes. Congress already passed the SAVE Act in 2015, which amended the federal criminal statute on sex trafficking to include anyone involved in advertising sex trafficking. This amendment was specifically meant to target online platforms that host ads posted by third parties, and strip those platforms of Section 230 protection since the statute does not provide immunity against federal criminal charges.

    Any changes to Section 230 itself, to make it easier to impose liability on companies for user-generated content, would be devastating to the web as we know it—as a thriving online metropolis of free speech and innovation. As my colleague Matt Zimmerman wrote back in 2010 when Craigslist shuttered its adult services section, Section 230 “is not some clever loophole” but rather “a conscious policy decision by Congress to protect individuals and companies who would otherwise be vulnerable targets to litigants who want to silence speech to which they object.”

    Matt further explained:

    This clear protection plays an essential role in how the Internet functions today, protecting every interactive website operator—from Facebook to Craigslist to the average solo blog operator—from potentially crippling legal bills and liability stemming from comments or other material posted to websites by third parties. Moreover, if they were obligated to pre-screen their users’ content, wide swaths of First Amendment-protected speech would inevitably be sacrificed as website operators, suddenly transformed into conservative content reviewers, permitted only the speech that they could be sure would not trigger lawsuits.

    So while Backpage’s announcement suggests that the company’s opponents have at least temporarily won the battle against the adult services section of the website (because Backpage has vowed to continue its legal battles), EFF will continue to try to win the war to ensure that both the First Amendment and Section 230 remain strong protectors of Internet intermediaries—the online innovators who enable the rest of us to communicate, engage in commerce, and generally be active participants in our democratic and diverse society like never before.

    Source: Government Pressure Shutters Backpage’s Adult Services Section | Electronic Frontier Foundation


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  • Fake News Is Still Free Speech

    Posted on by Azrael Comment

    Fake News Is Still Free Speech

    Free speech is one of the most settled principles of law and public policy, or so you might think. We recoil at censorships of the past. We acknowledge the freedom to speak as an essential human right. We are taught the legend and lore of the struggle for it in all our years in school.

    And all of this is fine … until it is actually exercised, as it is moment by moment today, thanks to the mass distribution of communication technology. We are finally getting what we always wanted – the universal right and opportunity to reach the universe of humanity in an instant with thoughts of our own choosing.

    And it turns out everyone hates it.

    Panic

    The Left says the Right is lying with fake news. The Right says the Left is lying with fake news. Mainstream commentators on all sides are annoyed that extremists have crashed their once-stable ideological culture, while the speech rebels say that the mainstream has never been truthful.

    The whole battle is growing increasingly tense. The Center-Left is shaken to the point of documenting every nutty thing you find on the Internet. Vox showed how fake news in 2016 “filtered into the mainstream again and again: at the end of the election, fake news on Facebook outperformed real news, and 17 of the 20 highest-performing fake news stories were anti-Clinton.”

    The Populist Right is warming to the Trump plan for dealing with press he doesn’t like. “One of the things I’m going to do if I win,” said Trump, “I’m going to open up our libel laws so when they write purposely negative and horrible and false articles, we can sue them and win lots of money.” People at his rallies ate it up. And you can find hundreds of thousands of people on various pro-Deplorable groups on Reddit and Facebook who passionately agree with him.

    The problem: the freedom to criticize the President has been an established feature of American law since the election of 1800 led to the repudiation of the Alien and Sedition Acts which made it a crime to criticize the top of the ticket. The laws criminalized anyone who would “write, print, utter, or publish … any false, scandalous, and malicious writing” about the president. Voters wisely noted that the first amendment surely invalidates such laws.

    Freedom or Control

    Freedom creates conditions under which truth stands a chance to emerge from the clamor.We don’t do that anymore, based on a general conviction that freedom for all is better than the attempt to control. Why? Freedom creates conditions under which truth stands a chance to emerge from the clamor, while the attempt to control ends up politicizing what we are and are not permitted to hear. Yes, freedom does not guarantee any particular result, but it does give good results a fighting chance while reinforcing other important things like human rights.

    These days, that’s not good enough for some people. The Obama/Clinton crowd continues to believe that bad information flowing around the public square is what accounts for an otherwise-perfectly executed campaign. On the other side of the fence, there is a growing fear bordering on paranoia that Twitter, Facebook, and other social venues are punishing politically incorrect thought while boosting regime-approved ideas.

    What’s so striking about these debates is that censorship has never been less viable than it is today. Try to suppress access in one venue and it immediately pops up on another one. Make it clear that some ideas are not welcome here, and you inspire an invisible army of champions of that idea to build yet another venue. You can block, ban, and exclude through known technologies only to have the same pop up in another technology you didn’t know about.

    And herein lies the brilliance of a decentralized and highly competitive system of information-sharing and distribution. Consider this: from the end of World War II through the Reagan presidency, there prevailed only three television networks. The government itself exercised the primary influence over the content. These networks began to think of themselves as public utilities, a ruling class, a protected elite, and they dispensed canons of the civic religion on a daily basis.

    Monopoly Broken

    All of that has blown up. The cartel crumbled in the late 1980s, creating an avalanche of speech that only grows in power. Now the Big Three combined take up only a small percentage of people’s attention relative to the millions of other possible venues. And speaking of millions, the Big Three has become hundreds of millions of people with instant live television cameras in their pockets which they can use to broadcast to the multitudes, with zero civic control on the content.

    There is no shutting this system down.And it’s more epic even than that. The establishment media was delivered a stunning blow with the election results of 2016. Following 18 full months of dismissing and denouncing the eventual winner, while predicting the certainty of an outcome that did not happen, the public credibility of the old-line establishment news source has hit new lows.

    And so, there is a turn to something new. Incredibly, the man elected to be President of the United States prefers Twitter, a free platform similarly available to everyone. And it’s free! We’ve come a very long way from a time when FDR’s fireside chats were the only option.

    There is no shutting this system down, despite all the talk of curation, censorship, lawsuits, algorithmic fixes, and so on.

    Does this mean fake news, hate, mania, immorality, and so on are going to continue to thrive unchecked? In a word, yes. Every manner of everything will continue to be accessible to everyone. We need to learn to revel in and celebrate finding videos, podcasts, Twitter accounts, and Instagrams featuring ideas you find disgusting, abhorrent, false, and dangerous. Their freedom to speak protects your freedom to speak.

    Everyone participates in, but no one finally wins, the argument. It’s a never-ending process. 

    How can we tell truth from untruth in such a chaotic environment? There is no substitute for trusting the individual human mind to sort out what is true news or fake news, valuable information or valueless information, meritorious or useless communication. No authority can substitute for the activity, creativity, and adaptability of the human mind.

    Welcome to freedom, friends. This is how it works. And it’s beautiful.


    Jeffrey Tucker

    Jeffrey Tucker is Director of Content for the Foundation for Economic Education. He is also Chief Liberty Officer and founder of Liberty.me, Distinguished Honorary Member of Mises Brazil, research fellow at the Acton Institute, policy adviser of the Heartland Institute, founder of the CryptoCurrency Conference, member of the editorial board of the Molinari Review, an advisor to the blockchain application builder Factom, and author of five books. He has written 150 introductions to books and many thousands of articles appearing in the scholarly and popular press.

    This article was originally published on FEE.org. Read the original article.



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  • CBP Fails to Meaningfully Address Risks of Gathering Social Media Handles

    Posted on by Azrael 1 Comment

    Last month we submitted comments to Customs and Border Protection (CBP), an agency within the U.S. Department of Homeland Security, opposing its proposal to gather social media handles from foreign visitors from Visa Waiver Program (VWP) countries. CBP recently provided its preliminary responses (“Supporting Statement”) to several of our arguments (CBP also extended the comment deadline to September 30). But CBP has not adequately addressed the points we made.

    1) We argued that the proposal would be ineffective at protecting homeland security, because would-be terrorists seeking to enter the U.S. under the VWP are unlikely to voluntarily provide social media handles that link to incriminating posts that are publicly available. In its Supporting Statement, CBP said:

    Extensive research by DHS and our interagency partners has determined that these additional data elements will increase the ability to stop these travelers before they attempt to travel to the United States.

    It may help detect potential threats because experience has shown that criminals and terrorists, whether intentionally or not, have provided previously unavailable information via social media that identified their true intentions.

    But CBP has not shared its purported “extensive research” or provided any details about its asserted “experience.”

    Before adopting a new policy with significant privacy and free speech implications, a federal agency should provide the public with the evidence supporting the agency’s claims of efficacy. CBP has failed to do so here.

    2) We argued that the proposal would violate the privacy and freedom of speech of innocent travelers and their American associates. We also made the point that given the confusing wording of the proposed language (“Information associated with your online presence—Provider/Platform—Social media identifier”), travelers may over-share and turn over not just their handles, but also their passwords.

    CBP said, “If an applicant chooses to answer this question, DHS will have timely visibility of the publicly available information on those platforms, consistent with the privacy settings the applicant has set on the platforms.”

    Yet the agency notably did not say what the government would do if a traveler does provide log-in information that would enable access to private online content.

    3) In arguing that the proposal would violate privacy and freedom of speech, we also explained that the proposal is vague and overbroad because it contains no definitions or limitations as to what counts as a “social media identifier,” which may lead VWP visitors to share a variety of online accounts that reveal highly personal details about them.

    CBP said, “A social media identifier is any name, or ‘handle’, used by the individual on platforms including, but not limited to, Facebook, Twitter, LinkedIn, and Instagram. Applicants are able to volunteer up to 10 identifiers.”

    Yet the agency did not say that it would provide such explanatory text on the online ESTA application or paper I-94W form.

    4) In arguing that the proposal would violate privacy and freedom of speech, we expressed concern that the government might use the social media information it gathered in unknown and future non-travel contexts to the detriment of VWP travelers and their American associates.

    CBP admitted that this will occur:

    ESTA information may be shared with other agencies that have a need to know the information to carry out their national security, law enforcement, immigration, or other homeland security functions. Any and all information sharing with agencies outside DHS will abide by existing memoranda of understanding between the agencies and be consistent with applicable statutory and regulatory requirements.

    This exacerbates the chilling effect we discussed in our comments. Innocent VWP travelers may engage in self-censorship and cut back on their social media activity—even in their home countries—out of fear of being misjudged by the U.S. government, or of putting their friends and loved ones at risk.

    5) We argued that the proposal would have constitutional implications for the American associates of VWP visitors, or for American travelers themselves if the program were extended to request their social media handles or include invasive searches at the border of mobile devices and “apps” or other means of accessing cloud content.

    In response to constitutional concerns, CBP merely listed a statute and regulation and said, “These authorities apply to the collection of social media identifiers.”

    The agency failed to acknowledge that the Constitution has supremacy over any legislative rule.

    6) We argued that the proposal would spur other countries to demand the same information from American travelers, which would put Americans at risk overseas.

    CBP said, “All sovereign countries are within their authority to impose travel regulations and entry requirements. DHS does not dictate the rules and regulations of other countries. DHS has added additional fields to the ESTA application over the last two years and has not seen other countries reciprocate in the questions asked to U.S. visitors.”

    Yet the agency failed to recognize that seeking social media handles, including from people who have legitimate reasons for being pseudonymous online yet publicly vocal, is particularly intrusive and so may incite certain foreign governments to demand the same information from American travelers.

    7) We argued that the proposal contains no standards by which CBP would evaluate public social media posts, to ensure that posts would not be taken out of context and innocent individuals would not be misjudged.

    CBP said, “Highly trained CBP personnel will independently research publicly available social media information and will be able to recognize factors such as context. CBP will make case-by-case determinations based on the totality of the circumstances.”

    Yet this provides little guidance for the public or even the government agents tasked with evaluating social media posts. CBP did not address our specific concern about ideological exclusion, where someone such as an academic may not pose a security risk but has views critical of American foreign policy.

    As we said in our comments, we do not doubt that CBP and DHS are sincerely motivated to protect homeland security. However, the proposal to collect social media handles has serious flaws—and the government has failed to adequately address them.



    Source: CBP Fails to Meaningfully Address Risks of Gathering Social Media Handles | Electronic Frontier Foundation


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