self-hosting-advocacy/harmful-communications-201910
1
0
Fork 0
Code Issues Pull requests Releases Wiki Activity

Completion. Consolidation and spell-check left to do

Browse source
This commit is contained in:
Éibhear Ó hAnluain 2019-09-19 15:42:48 +01:00
parent b4541778fe
commit 8cbfd939f5
1 changed files with 280 additions and 121 deletions
Show stats Download patch file Download diff file Expand all files Collapse all files

399
HarmfulCommunications201908.org
View file

@ -344,23 +344,7 @@
However, prior to addressing these topics, I would like to raise
some ambiguities that this wider discussion will encounter.
- The first is the meaning of the term /self-regulation/. If a
measure of self-regulation to address these concerns is
acceptable, then it would be necessary for public-perception
reasons, to be clear on what that means. /Self-regulation/ could
mean either where each service operator manages matters of
harassment and harmful communications according to their own rules
and processes. This is currently how the large service providers
we're most familiar with operate. However, /self-regulation/ may
also refer to regulation by a non-governmental industry-funded
body, following the model of the press council or the advertising
standards authority, where rules and processes are agreed among
the operators as a set of standards, and where decisions of
compliance to these are made by this body.
In order to avoid this ambiguity, I will use the term
"self-moderation" to refer to the former, and the term
"industry-regulation" for the latter.
- The first is the meaning of the term /self-regulation/.
* CONSDONE Self-hosting
** CONSDONE Self-hosting
@ -595,7 +579,7 @@
pop into the heads of individuals, who will realise them with
nothing more than a computer connected to the internet.
* CONSTODO Other considerations
* CONSDONE Other considerations
While the main focus of this submission is to highlight the
potential risk to self-hosters from regulation that neglect to
consider the practice, I would like to take the opportunity to
@ -728,7 +712,7 @@
decision as it didn't have time to determine the full context, or
because it misinterpreted or misunderstood the context.
** CONSTODO User Behaviour
** CONSDONE User Behaviour
Many believe that the way to deal with abusive or harmful material
online is to punish the services that host the material. This is
reasonable if the material was placed onto the service by those who
@ -763,7 +747,7 @@
there is no attempt to change behaviour, then abusive people will
simply work around the controls and continue to abuse.
** CONSTODO Investigation support
** CONSDONE Investigation support
In response to the live-streaming of that horrific shooting dead of
more than 50 people in New Zealand earlier this year, that country
@ -777,14 +761,30 @@
it might include
- to appeal for help in finding someone caught up in the masssacre
- Legitimate news reporting of such an event.
- to help investigate the shooting and its circumstances
- to help investigate the shooting and its
circumstances[fn:ForArch:Forensic Architecture,
https://forensic-architecture.org/, is a research group that
investigates alleged abuses of human rights using image and video
records of events. To criminalise the sharing of such imagery and
videos with no regard as to the purpose for the sharing plays
directly into the hands of those who disregard victims' civil
rights.]
- training for law enforcement or terrorism- or disaster-response
personnel.
However, if the law says that no form of sharing is permitted, then
none of the entirely legitimate purposes would be possible, and the
world would be that bit less safe as a result.
** CONSTODO Encrypted services
There is a similar consideration for abusive material posted
online. If a communication is deemed to be an offence, care needs
to be taken to ensure that the "removal" of such a communication
(or a set of such communications) is not equivalent of the
destruction of evidence. This is particularly true in the context
that it is now very easy for anyone to forge screen-shots of online
postings.
** CONSDONE Encrypted services
Some believe that if end-to-end encryption services that prevent
security services from accessing material were banned or
@ -828,105 +828,264 @@
* CONSTODO Answers to consultation questions
The follows are some answers to the questions posed in the call for
submissions.
** CONSTODO Definition of communication in legislation
1. There are currently significant gaps in legislation with regard
to harassment and newer, more modern forms of communication. Is
there a need to expand the definition of ‘communications’ to
include online and digital communications tools such as
WhatsApp, Facebook, Snapchat, etc. when addressing crimes of
bullying or harassment?
- Éibhear comment :: (/Address in introduction/) It is necessary
not to assume that the current services that operate will
be the primary services in 5 or 10 years' time.
2. What lessons can be learned from models used in other
jurisdictions such as the UK, New Zealand, Australia and other
European countries where legislation is now in place to address
these issues? How do we establish an appropriate model without
compromising free speech?
- Éibhear comment :: (/Address in answer to specific questions/)
UK: duty of care is inappropriate. New Zealand: allowing a
committee to decide what is objectionable, thus restricting
not only those who want to share objectionable material,
but also those who want to report on it.
3. How do we ensure that any legislation that is enacted is
flexible enough to keep up with changing and advancing
technologies, new apps and other online forums, including the
more familiar social media sites?
- Éibhear's comments :: (/Core concern/) Hmm. This is the meat
of the submission.
** CONSTODO Harassment, stalking & other forms of online abuse
4. [@4] Online harassment can take the form of on-consensual taking
and distribution of intimate images or videos, otherwise known
as ‘revenge porn’, ‘upskirting’, ‘downblousing’ and other forms
of sharing of imagery online without consent. What approaches
are taken to addressing these issues in other jurisdictions?
- Éibhear's comment :: No answer for this
5. New offences are proposed to cover these issues in Deputy
Brendan Howlin’s Private Members Bill on this subject. Is the
creation of new offences necessary, or is existing legislation
sufficient? Should other forms of image-sharing issues - such as
exposure - also be addressed?
- Éibhear's comment :: No answer for this
6. What kind of oversight and regulation of online service
providers is possible/used in other jurisdictions? Currently,
online providers are self regulated. Is a proactive,
self-regulating approach from online companies to activities
such as revenge porn and other forms of harassment preferable to
** CONSDONE Definition of communication in legislation
- Question 1 :: There are currently significant gaps in legislation
with regard to harassment and newer, more modern
forms of communication. Is there a need to expand
the definition of ‘communications’ to include
online and digital communications tools such as
WhatsApp, Facebook, Snapchat, etc. when addressing
crimes of bullying or harassment?
+ Answer :: Yes. However, it is important to consider the following:
* Not all such tools are as large and have such human and
financial resources as the specific services referred
to. Legislation that makes the assumption that such
communication can take place only through services that are
as large and wealthy as these will stand a very good chance
of restricting or limiting competition in these services'
domains by imposing regulatory barriers of entry. I expand on
this in the "Self-hosting" section of this submission.
* Legislation should focus not on the tool, but on the
behaviour. In the main, therefore, it's the behaviour of
those performing the bullying or abuse that should be
targetted and not the "tool" used as the communications
medium. I expand on this in the "User behaviour" section of
this submission.
- Question 2 :: What lessons can be learned from models used in
other jurisdictions such as the UK, New Zealand,
Australia and other European countries where
legislation is now in place to address these
issues? How do we establish an appropriate model
without compromising free speech?
+ Answer :: The incentives need to be present to ensure that the
balance is managed correctly. Any legislation, such
as
/FOSTA-SESTA/[fn:FOSTA-SESTA:https://en.wikipedia.org/wiki/Stop_Enabling_Sex_Traffickers_Act]
in the US, that seeks merely to punish web sites,
will to more harm than good[fn:SOSTAEffect:Lura
Chamberlain, FOSTA: A Hostile Law with a Human Cost,
87 Fordham L. Rev. 2171 (2019). Available at:
https://ir.lawnet.fordham.edu/flr/vol87/iss5/13]. The
incentive for US-based web site operators in this
case is either *never* to host information for or by
sex workers for fear of falling foul of the law, or
to cease operations altogether. The result has been a
human rights disaster, as sex workers, particularly
women, are now at greater risk than before due to the
failure of the law to consider the effect of a
straight ban.
The recently-passed new EU Copyright directive
mandates the filtering of user uploads based on prior
notice that such uploads *may* be infringing
copyright, subject to severe penalties, but requires
mere respect for users' freedom of speech with no
penalties attaching to failing to do so. The
incentive for the service operators here is to err on
the side of suppressing material regardless of
anyone's freedom of expression, as the consequences
of not doing so could be catastrophic for the service
operator.
The proposal in the UK to apply a duty of care to
service operators is also destined for failure, as a
duty of care is a physical-world concept that has no
suitable analogy in the context of internet services.
Ironically, the likely best regulatory approach is
one that online services currently operate under in
the US and to a large degree in Europe: intermediary
liability protection. All these services maintain
terms and conditions ("Community Rules", "Code of
Conduct", etc.) and confirmed violations of these
result in sanctions on the users. However, where
services aren't aware of violations, they are
protected on the grounds that the behaviour that is
objectionable is not that of the service operator,
but is of the user. In short, punish the user, not
the service provider, unless -- of course -- the
service provider is complicit.
- Question 3 :: How do we ensure that any legislation that is
enacted is flexible enough to keep up with changing
and advancing technologies, new apps and other
online forums, including the more familiar social
media sites?
+ Answer :: This is this submissions core concern. For
legislation to focus on the technology, and not on
the behaviour, to focus on the service operator and
not on the real offender, runs real risks of damaging
human rights of totally innocent parties, as well as
stifling innovation and consolidating the market
positions of the majar operators
** CONSDONE Harassment, stalking & other forms of online abuse
- Question 4 :: Online harassment can take the form of
on-consensual taking and distribution of intimate
images or videos, otherwise known as ‘revenge
porn’, ‘upskirting’, ‘downblousing’ and other forms
of sharing of imagery online without consent. What
approaches are taken to addressing these issues in
other jurisdictions?
+ Answer :: This submission is not offering any answer to this
question.
- Question 5 :: New offences are proposed to cover these issues in
Deputy Brendan Howlin’s Private Members Bill on
this subject. Is the creation of new offences
necessary, or is existing legislation sufficient?
Should other forms of image-sharing issues - such
as exposure - also be addressed?
+ Answer :: This submission is not offering any answer to this
question.
- Question 6 :: What kind of oversight and regulation of online
service providers is possible/used in other
jurisdictions? Currently, online providers are self
regulated. Is a proactive, self-regulating approach
from online companies to activities such as revenge
porn and other forms of harassment preferable to
the creation of more laws?
- Éibhear's comment :: Important to know the difference
between "self regulated", and pro-active
moderation. These service moderation according to their
own rules; there is no industry authority like the press
council or the advertising standards authority, which are
self-regulatory regimes.
7. Is any data provided by online service providers in relation to
the reporting or prevalence of activities such as
upskirting/revenge porn/cyberbullying and other online behaviour
that can be used to develop and draft future legislation?
- Éibhear's comment :: No data. However, services should be
encouraged to issue reports on their moderation efforts.
8. To what extent are An Garda Síochána equipped and resourced to
deal with the issues arising from harmful online communications
such as these?
- Éibhear's comment :: No answer for this
9. Should ‘cyberstalking’ be treated as a separate offence to
online harassment? What constitutes stalking-type behaviour
online? Is there a need to legislative specifically for this
activity?
- Éibhear's comment :: No answer for this
10. Based on the findings of other jurisdictions such as in the UK,
An Garda Síochána will require consistent training in order to
maintain an appropriate level of knowledge with regard to
indictable behaviours. Are resources available for this?
- Éibhear's comment :: No answer for this
11. Fake accounts/troll accounts used to harass or target others
with abuse – what measures can be taken in relation to these
without effecting freedom of expression?
- Éibhear's comment :: Care needs to be taken to ensure
manage/prevent false identification of accounts as 'fake'
or 'troll'.
12. Do other jurisdictions have statutory measures to protect
victim identities in cases of online harassment being released
online posthearings, etc?
- Éibhear's comment :: No answer for this
** CONSTODO Harmful online behaviour and young people
13. [@13] How do we most appropriately regulate social media
platforms to prevent cyberbullying and inappropriate sharing of
personal images?
- Éibhear's comment :: take details from earlier submission.
14. For young people who participate in such online behaviour as
consensual image sharing, how can it be ensured that they are
not inadvertently criminalised when legislation is enacted?
What safeguards can be put in place?
- Éibhear's comment :: No answer for this
15. Deputy Brendan Howlin’s Private Members Bill provides that
those under 17 should not be fined/imprisoned but put into
relevant education or supports. Would these supports be part of
the same educational supports offered to all young
people/schools or would they be a separate entity? Are current
supports being utilised? Are there sufficient resources to
provide for such a provision when enacted?
- Éibhear's comment :: No answer for this
+ Answer :: If a measure of self-regulation to address these
concerns is acceptable, then it would be necessary
for public-perception reasons, to be clear on what
that means. /Self-regulation/ could mean either where
each service operator manages matters of harassment
and harmful communications according to their own
rules and processes. This is currently how the large
service providers we're most familiar with
operate. However, /self-regulation/ may also refer to
regulation by a non-governmental industry-funded
body, following the model of the press council or the
advertising standards authority, where rules and
processes are agreed among the operators as a set of
standards, and where decisions of compliance to these
are made by this body.
Aside from making this comment on the term, what is
more important is getting the competing rights
correctly balanced, rather than the model of
regulation that asserts that balance.
- Question 7 :: Is any data provided by online service providers in
relation to the reporting or prevalence of
activities such as upskirting/revenge
porn/cyberbullying and other online behaviour that
can be used to develop and draft future
legislation?
+ Answer :: Each of the major sites prepare what are called
"Transparency Reports". However, many of these
reports are constrained by rules laid out by (in
particular) the so-called "Intelligence Community" of
the United States. Thus these reports are not as
transparent as they could be.
It should be a requirement for such services to issue
a periodic report detailing the following statistics
in each:
* The number of reported postings, broken down by nature of the
complaint
* Number of reports that were appealed to the service, broken
down by the nature of the complaint and the basis of appeal
* Number of appeals upheld, broken down by reason for appeal
* Number of appeals rejected, broken down by reason for
rejection.
* Number of complaints/appeals that were appealed further to
the regulator or courts system.
- Question 8 :: To what extent are An Garda Síochána equipped and
resourced to deal with the issues arising from
harmful online communications such as these?
+ Answer :: This submission is not offering any answer to this
question.
- Question 9 :: Should ‘cyberstalking’ be treated as a separate
offence to online harassment? What constitutes
stalking-type behaviour online? Is there a need to
legislative specifically for this activity?
+ Answer :: This submission is not offering any answer to this
question.
- Question 10 :: Based on the findings of other jurisdictions such
as in the UK, An Garda Síochána will require
consistent training in order to maintain an
appropriate level of knowledge with regard to
indictable behaviours. Are resources available for
this?
+ Answer :: This submission is not offering any answer to this
question.
- Question 11 :: Fake accounts/troll accounts used to harass or
target others with abuse – what measures can be
taken in relation to these without effecting
freedom of expression?
+ Answer :: The assumption that an account that isn't clearly
associated with a personal identity is "fake" needs
to be challenged. It is the /behaviour/ of the
account than needs to be considered. This is true of
accounts that are associated with indentifiable
individuals as well as of pseudonymous
accounts[fn:trolls:A well-known Irish public figure
who offers commentary on many aspects of society
frequently posts messages on Twitter designed to
elicit angry responses. I describe this person as "A
master of the false equivalence". This is the classic
online trolling behaviour. Similarly, on the 18th
September 2019, a prominant UK journalist tweeted
personal details of a father who publicly challenged
UK Prime Minister Boris Johnson regarding the state
of the NHS. This was construed by many as a
deliberate trolling to inflict a measure of
unofficial retribution on the man.].
It should not be assumed that pseudonymous accounts
are created in order for the users to escape legal
consequences for criminal communications. There are
many reasons for maintaining a psuedonymous presence
online, some of which I have personally encountered
being:
- To protect against a physically abusive family
member
- To protect against an employer that monitors online
activities
- To engage online in a manner that deals with prejudices
(e.g. many respond to women differently than to men, to
people of a different religion or skin colour than to those
of the same religion or skin colour, etc.)
- To protect against action from their own governments whose
laws are less respectful of civil rights as we would think
Ireland's are.
It should not be assumed that a pseudonymous account has been
created for reasons of abuse or harmful communication. In fact,
there's good reason to assume that the significant majority of
pseudonymous accounts operate for completely innocent
reaons[fn:realnames:facebook excepted. However, facebook's
real-name policy is itself wrong, and does a great deal of
damage to people who have good reasons for their names not to
be associated with their online presences.].
- Question 12 :: Do other jurisdictions have statutory measures to
protect victim identities in cases of online
harassment being released online posthearings,
etc?
+ Answer :: This submission is not offering any answer to this
question.
** CONSDONE Harmful online behaviour and young people
- Question 13 :: How do we most appropriately regulate social media
platforms to prevent cyberbullying and
inappropriate sharing of personal images?
+ Answer :: I refer you to the details of this submission.
- Question 14 :: For young people who participate in such online
behaviour as consensual image sharing, how can it
be ensured that they are not inadvertently
criminalised when legislation is enacted? What
safeguards can be put in place?
+ Answer :: This submission is not offering any answer to this
question.
- Question 15 :: Deputy Brendan Howlin’s Private Members Bill
provides that those under 17 should not be
fined/imprisoned but put into relevant education
or supports. Would these supports be part of the
same educational supports offered to all young
people/schools or would they be a separate entity?
Are current supports being utilised? Are there
sufficient resources to provide for such a
provision when enacted?
+ Answer :: This submission is not offering any answer to this
question.
* CONSDONTDO Answers to consultation questions :noexport:
** CONSTODO Strand 1 -- National Legislative Proposal