Monday, March 19, 2018

Hollywood could find that gutting Section 230 (because of Backpage) could help defend its business model from low-cost competition; Does Section 230 protect Facebook over Russian meddling?

Electronic Frontier has been re-posting tweets with reminders for visitors to contact their Senators to defeat SESTA for some time, but Sunday night EFF published its best and most comprehensive (dot-connecting) article yet on the Backpage-Section 230 problem, by Joe Mullin, “How FOSTA could give Hollywood the filters it’slong wanted”.  
First, let me also mention that the article (before the usual “Take Action” button for calling Senators) does explain well the way Section 230 (dealing with most torts like libel) works “in sync” or in parallel to DMCA Safe Harbor (specifically for copyright infringement claims), although Section 230 does not have an actual corresponding provider takedown process for a libel claim. 
Mullin is recalling the debate over SOPA (Stop Online Piracy) at the end of 2011, which led to a day long protest (with a Wikipedia blackout) in January 2012.  Congress finally scuttled SOPA because of too many likely unintended consequences.  Hollywood seemed to want YouTube, Vimeo and other platforms (I guess (Facebook) to catch all pirated videos in advance before they could be put up.  Even today, sometimes there are low-quality copies of films that look illegitimate, with the videos often disappearing and accounts terminated according to YouTube “copyright strikes” policies.  It’s worth noting that there is controversy again (in a New York ruling) over whether bloggers could be liable for merely embedding copyright infringing material on other servers (Feb. 17).

The underlying concept, again, is that a service provider (for example, your hosting provider if you have your own domain and website) cannot possibly pre-screen every posting you could make for possible downstream legal issues – particularly for the common torts and particularly for copyright. If it had do, people simply would not be allowed to self-publish on the web because of the subsumed risk to others.  Things would get published only when they made money with paying publishers and were popular enough, or came from well-established and politically acceptable causes and organizations.  That’s more how it is in authoritarian countries like China and, for example, Singapore (Russia less so).  But that’s how things were in the US until the mid-late 1990s when the Internet opened up. And it looks like that's how Hollywood and maybe some legacy trade publishers would like it to be again. 

There were early fights over whether user-generated content needed to be screened for child appropriateness (the 1996 Communications Decency Act, largely struck down in 1997, and later the Child Online Protection Act, or COPA, for which I was a litigant under EFF, finally struck down in Philadelphia in 2007).  But in 1996 Section 230 of the same CDA was established, and in 1998 the DMCA Safe Harbor mechanism was set up. Both of these laws largely shield service providers (ranging from shared web hosting to social media companies, to specialized classified ad sites – like Backpage, or Craigslist, to discussion forums) from downstream liability for user behavior.  But in some cases they are required to report credible information (from user complaints) about illegal behavior of users, like postings of child pornography and, even under current law, selling sex trafficking (of minors), to law enforcement.  But they only need to report retrospectively this when informed, not prospectively by screenig.  Congress seems to want to establish a “should have known” (like Reid Ewing’s “woulda-coulda-shoulda” line from his 2012 short film “I’m Free!”)  or “reckless disregard’ standard specifically for sex-trafficking conducted by users on their platforms.  A good question is whether “reckless disregard” would mean different standards for different kinds of providers.  A hosting provider like BlueHost is in much less position to know what I am doing than even Facebook.  Another question is whether “underlying conduct” refers to the provider or to the user.

The EFF article links to two letters of support from the tech industry from last autumn.  By late fall, we were getting feedback that the tech industry as a whole was comfortable that SESTA would be narrow enough to catch only ad sites.  That seems to have changed. 
One of the letters is from Oracle, the database company on Highway 101 south of San Francisco (I have stated in a motel right next to it once – this company used to be very influential on the IT job market), sent to Senator Bob Portman. Oracle suggests that even startups and smallc companies have screening technology not available in 1996 – like searching the Cloud (it is possible to identify child pornography from digital watermarks on known images in the Cloud now – people have been arrested this way).  Does this mean that a hosting company like BlueHost should routinely scan its servers for illegality?  Except for known digital watermarks (NCMEC in Alexandria VA) what else could it look for?  Oracle makes a leading statement at the end, that those who sell advertising (like bloggers using ad services like this one’s) must chip in and help stop sex trafficking. 
Then 21st Century Fox weighs in (funny, it’s never changed the 20 to a 21 in its trademark), as published in Variety:  “We believe that everyone who does business in this medium  has a civic responsibility to help stem illicit and illegal activity.” 
It’s easy to wonder where his is headed.  EFF’s article seems to bring up the idea that Hollywood objects not only to piracy but to the low-cost content (especially video and micro-budget films) that it imagines competes with its union and guild-supported films.  (The guilds like SAG do have special rules for low budget films, by the way.)   Mark Cuban once mentioned as much on his “Blogmaverick” (reinforced in an email back to me).  Given the commercial success of a “Black Panther” (and its political correctness) it’s hard to imagine that this should be an existential concern for Hollywood now.  But just last weekend, for the film “Love, Simon”, Fox provided a prologue where Robinson and Berlanti thank the audience for actually coming to a theater to see a (gay-themed) movie rather than couch-sitting at home and doing video.

There’s also the idea that, if someone has his own voice online, he owes something back and needs to pay off someone else’s prespecified agenda.  Sex trafficking is horrible, but so are a lot of other things (like recruiting terrorists).  What gives Oracle and Fox the right to dictate our own political priorities?  This sounds like it could go into expecting people to show intersectional volunteerism or “community engagement” before having their own voices online at all (an idea I hinted at in my 2014 DADT III book, “Speech is a fundamental right, but being listened to is a privilege”).  I seem to have started something.
EFF also shared an article from Jezebel (“The Slot”) about the plight of legitimate (consensual) adult sex workers, “#LetUsSuvive”, here

The scuttlebutt over Facebook and the Cambridge Analytica harvest operation (a kind of digital epilation) is certainly raising a different set of questions over Section 230 protection for social networks like Facebook. Blogs alone don’t raise that question, although blogs can “connect the dots” in novel ways and influence policy and maybe elections in asymmetric ways (as was known from a controversy over campaign finance in the early 2000’s). 

In an interchange on Facebook today on this very matter, a FB user suggested that bloggers be required to label their posts as opinion rather than news, as a matter of law!  That same user had suggested that "electronic media should be governed by the same controls and, dare I say, regulations, under which newspaper, TV and radio have operated."  All this was in reaction to another friend's post of an update on Cambridge in the Guardian, well, an op-ed by Ellie Mae O'Hagan, "Nobody can pretend Facebook is just harmless fun anymore", complete with a picture of Mark Zuckerberg's gams. 

Without the opportunity for unsupervised speech as I have engaged online since late 1996, I would be compelled to join to “take sides” in what I see as combative political tribalism, and let an activist group on one side or the other speak for me.  I do get offended at all these pleas for money from groups like Truth-Out:  some of their articles are interesting, but they seem to trying to bully (almost threaten) me into supporting them and letting them speak for me.  If I had to chose sides, I might not choose the side you want.

I don’t know how close SESTA is to a vote, and whether it has to be combined with FOSTA first, and whether there would be one more round of reconciliation between House and Senate first.  I would hope that the language would be narrowed further as to what some critical phrases mean in relation to different kinds of providers.   I also don’t know whether EFF has any plans to help users “assimilate” to the weakening of Section 230, which seems rather inevitable given the political climate – whether it plans gatherings on either coast.  I a trying to find out. 

Brief Update:

It appears that FOSTA "as is" was entered into the Senate schedule on Friday March 16, but that doesn't predict how long it will take to come to a vote.  Skopos Labs gives it a 49% chance of passage in that form. 

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