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Moving the FOSTA/SESTA rant out to a seperate file

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HarmfulCommunications201908.org
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@ -245,88 +245,6 @@
* Abuse, child sexual exploitation, hateful conduct, private information, Sensitive media, voilent threats
* => 60,000 account reported/day
* => 0.02% of accounts reported
* CONSDONTDO The distinction between user behaviours and online services :noexport:
The internet is awash with online harassment and harmful
communications, and responsible governments and legislators have
been trying for decades to do something about it.
However, it's no less true in this sphere than in any other that
"doing something" is not necessarily enough to address the problem:
doing only the /right thing/ it what's required.
In the first of his 6 Laws of
Technology[fn:6laws:https://en.wikipedia.org/wiki/Melvin_Kranzberg#Kranzberg's_laws_of_technology],
Dr. Melvin Kranzberg determined that "Technology is neither good nor
bad; nor is it neutral." The tempation on observers is to decide
that the extent of online harassment, abuse and harmful
communications is because of the existence of online services, and
that if only we could force the services to implement their
technologies in a particular manner, all the problems will be
solved.
For instance, the United States of America recently enacted a law
known as the "Stop Enabling Sex Traffickers Act", or
/FOSTA-SESTA/[fn:FOSTA-SESTA:https://en.wikipedia.org/wiki/Stop_Enabling_Sex_Traffickers_Act]. This
was a law to show that the U.S. Congress was doing something to stop
sex-trafficking. The law made it an offence for online services to
"knowingly [assist], [support], or [facilitate]" sex-trafficking,
and it removed from online services speech-related protections that
had been previously provided under another U.S. law known as the
"Section 230 of the Communications Decency Act".
Accounts show, however, that doing *this* was not effective, and has
been counter-productive. As expected, a number of websites that had
been used to legally advertise sex services in the United States
either shut down that section of their service (e.g. Craigslists'
"Erotic Services"), or shutdown completely[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]. If the goal of the
law was to protect sex workers, and women in particular, it has had
the opposite effect:
- Independent sex workers now have no online means to promote their
services, forcing them to turn to pimps for this.
- There has been a notable increase in the number of sex workers who
have gone missing.
- Some sex-workers have died by suicide.
- Assault and rape of sex workers has increased, and many fear that
murders of sex workers are also
increasing[fn:craigslisthomicide:http://www.econlib.org/archives/2018/01/craigslist_redu.html].
- Sex workers have no means to learn about their potential clients
prior to the client knowing about them: where they could vet
people who made contact with them over these services before
identifying themselves, this is not possible anymore, and
dramatically increases their risk.
- Ironically, one of the negative effects of /FOSTA-SESTA/ is that
it is now much harder for the police to investigate rapes,
assaults and murders of sex workers than before, because a
critical trail of evidence -- the online communications between
offenders and sex-workers -- now can no longer be
laid[fn:FOSTAPolice:https://www.techdirt.com/articles/20180705/01033440176/more-police-admitting-that-fosta-sesta-has-made-it-much-more-difficult-to-catch-pimps-traffickers.shtml]. This
is not least because the websites are no longer there, but because
when they were (e.g. Backpage), they assisted the police
investigating these crimes against sex workers; advertising was
legal back then, and now it's not, the police won't get the help
from web sites when they need
it[fn:SESTAPolice:https://www.techdirt.com/articles/20180509/13450339810/police-realizing-that-sesta-fosta-made-their-jobs-harder-sex-traffickers-realizing-made-their-job-easier.shtml].
This was predicted, but by advocates for sex workers and for free
speech, and legislators failed to heed the warnings. In fact, when
considering this law, legislators were presented with statistics
that were false, and misrepresented the landscape prior to enacting
/FOSTA-SESTA/[fn:buzzfeed:https://www.buzzfeednews.com/article/jennyheineman/sex-trafficking-myths-sesta-fosta].
I highlight this law in particular because it is both recent
(early 2018) and relevant. However it's not alone, and as we look at
pending legislation coming to us both domestically and from the EU,
it's hard not to see the same failures repeating:
- Pat Rabbitte's and Lorraine Higgins' bills, since withdrawn
- The EU Terrorism Content Directive...
- The new Copyright Directive...
-
* Introduction
My name is Éibhear Ó hAnluain and I have been working in software
@ -1107,227 +1025,3 @@
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
*** CONSTODO Question 1 -- Systems
- The legislation should state in an unequivocal manner that it is
not the role of web services to adjudicate on whether specific
user-uploaded pieces (text, videos, sound recordings, etc.) can
be considered harmful under the legislation. The law should make
it clear that where there is a controversy on this matter, the
courts will make such rulings.
- As regard a system, this submission would support a
notice-counternotice-and-appeal approach. Such an approach
affords the service operator and the accused party an
opportunity to address the complaint before the complained-of
material is taken offline. The following should be incorporated:
1) A notice to a service operator that a user-uploaded piece is
harmful should contain the following information:
- That the notice is being raised under this legislation
(citing section, if relevant).
- That the person raising the notice is the harmed party, or
that the person raising the notice is doing so on behalf,
and at the request, of the harmed party. Where the harmed
party doesn't want to be identified, the notice could be
raised on their behalf by someone else. However, totally
anonymous notifications under this legislation should not
be permitted, as it would not be possible to determine the
good-faith nature of the notice.
- The specific (narrowly tailored) definition of "harmful
content" in the legislation that is being reported.
2) A notice to the user who uploaded the complained-of material
regarding the complaint. This will allow the user to remove
the material, or to challenge the complaint. An opportunity
to challenge a complaint is necessary to forestall invalid
complaints that seek to have information removed that would
not be considered harmful under the legislation.
3) Adequate time periods for both the complainant and the
posting user to respond.
4) Where responses aren't forthcoming...
- ... if the posting user doesn't respond to the initial
complaint, the posting is to be taken down
- ... if the complaining user doesn't respond to the posting
user's response, the posting is left up.
5) Within a reasonable and defined period of time, the service
provider will assess the initial complaint, the
counter-notice, and the complainant's response to the
counter-notice, and will decide whether to take the material
down or to leaving it up, /citing clear reasons for the
decision./
6) Where either party is not happy with the decision, they can
appeal to the regulator, and if the regulator contradicts the
service operator's decision, the service operator must abide
by the regulator's ruling. In its consideration of the
ruling, the regulator must be required to consider the rights
of both parties.
- Responsibilities and obligations of the service provider *must*
relate to the size of the service. For example, it's not
reasonable to ask the service provider to respond within an
amount of time for those services that would not have someone
available within that time. Self-hosters or small,
single-location, operations would not be able to respond within
an hour if the complaint is made at 4am!
- This system should not apply to complaints that a posting violates the service's terms and conditions. If the complaint isn't explicitly made under this legislation, it should not fall within the regulator's remit. *Under no circumstances should merely violating a service's terms and conditions (or "community standards") be considered an offence under this legislation.*
*** CONSTODO Question 2 -- Statutory tests
The service operator should be protected from liability under the
rules if the service can show the following:
- That the initial complaint was responded to appropriately and
within a reasonable amount of time.
- That an appeal was responded to within a reasonable amount of
time.
- That the poster and complainant were each offered an opportunity
to respond
- That the responses, and any appeals, were given due
consideration.
- That the final decision (whether to keep the post up or pull it
down) was well-reasoned, and considered the context in which the
post was made.
- That, where appeals have been made to the regulator, the service
responds to any order from the regulator in a reasonable manner
and within a reasonable amount of time.
*** CONSTODO Question 3 -- Which platforms to be considered in scope
This submission is concerned to ensure that assumptions not be
made that all affected platforms will be large, for-profit
organisations with scores, or hundreds, or thousands of staff
acting as moderators of user-uploads.
The legislation should also not assume that platforms that want to
deal with user uploads *should* be of a particular nature, or
size.
To make either assumption would be to chill lawful interactions
between internet-connected parties, and would further entrench the
larger players on the internet.
*** CONSTODO Question 4 -- Definitions
- Please see my introductory comments on this matter.
- Definitions of "harmful content" must aim to be as narrow as
possible, in order to avoid the potential of the legislation
being used to target political speech.
- In respect of serious cyberbullying, it should be considered
harmful content under the legislation not just when it targets a
child. It should be considered cyberbullying and harmful even if
it is an adult, if the complaint states that s/he is being
harmed or fears harm should the complained-of behaviour
continue.
+ In the event that the target of the cyberbullying is a public
figure, there should be an additional burden on the
complainant to state that the behaviour represents real intent
to cause harm, and is more than people with opposing political
or social views "shooting their mouths off".
** CONSTODO Strand 2 -- Video Sharing Platform Services
*** CONSTODO Question 5 -- What are video-sharing services
This submission is not providing an answer to this question.
*** CONSTODO Question 6 -- Relationship between Regulator and VSPS
This submission is not providing an answer to this question.
*** CONSTODO Question 7 -- Review by Regulator
The regulator should require the following reports to be published
by online services regarding complaints made under this
legislation:
- Number of complaints, broken down by nature of complaint
- Number of complaints that were appealed to the service, broken
down by nature of complaint and 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.
** CONSTODO Strands 3 & 4 -- Audiovisual Media Services
*** CONSTODO Question 8 -- "Content" rules for television broadcasting and on-demand services
This submission is not providing an answer to this question.
*** CONSTODO Question 9 -- Funding
RTÉ and its subsidiary services should continue to be funded by
the government, either through the licence fee, general taxation
or a mixture of both. RTÉ's editorial independence should be
re-iterated in this law (and strengthened, if required,
specifically to assure independence from the editorial demands of
advertisers). It should be anticipated that RTÉ will eventually
broadcast only over the internet, and that it will be both a
live-streaming service (e.g. providing programming in a manner
similar to it's current broadcast schedule), *and* an on-demand
service.
Funding of services other than RTÉ should only be considered for
services operated by non-profit organisations such as trusts or
charities, and such funding should also come with an assurance of
editorial independence for the recipients.
** CONSTODO Strands 1 & 2 -- European & International Context
*** CONSTODO Question 10 -- Freedoms
- Core to the consideration of the legislation is that everyone
posting to services are presumed to be innocent of an offence,
and their postings should also be presumed *not* to offend the
law.
- Accusations of harm *must* be tested to determine if they are
being made to suppress legal speech. This is particularly true
where the person making the allegation is a public figure, or is
representing a public figure.
- Where a service applies -- or is required to apply -- sanctions
on users who repeatedly post harmful information, similar
sanctions should also be applied to users who repeatedly make
*false* accusations under the law.
*** CONSTODO Question 11 -- Limited liability
Any regulatory system that makes service providers liable for what
their *users* say on those services will result in one or a
combination of the following effects:
1) Service will stop permitting users to make postings.
2) Where the value of a service is wholly, or in part, that it
allows its users to post to it, the service may have to shut
down.
3) Services will be sued or prosecuted for the actions of its
users *regardless* of the effort and good faith they put in to
"moderating" what is posted on their service -- a concept that
is borderline ludicrous in the off-line world. This would be
analogous to a car manufacturer being liable for the
consequences of car occupants not wearing their seat-belts.
There must be clarity in the regulations that a service is
protected as long as it acts in a good-faith manner to deal with
postings made by users that are determined to have been
illegal. This reflects Ireland's obligations under various trade
agreements to grant safe-harbour protections to internet services.
The regulation must also protect platforms and their users against
bad-faith accusations of harm, particularly from public
figures. If it is easier to use an accusation of "harmful content"
than to claim libel, public figures will use that facility to
suppress information they would like not to be known.
** CONSTODO Strands 1-4 -- Regulatory Structures
*** CONSTODO Question 12 -- Regulatory structure
This submission is not providing an answer to this question.
*** CONSTODO Question 13 -- Funding of regulatory structure
This submission is not providing an answer to this question.
** CONSTODO Strands 1 & 2 -- Sanctions/Powers
*** CONSTODO Question 14 -- Functions and powers
This submission is not providing an answer to this question.
*** CONSTODO Question 15 -- Sanctions
The following should be taken into account when considering
sanctions on platforms
- The nature of the operation
+ Large, global, profit-based private organisations providing
services to the general population. (examples include YouTube,
Facebook, Twitter).
+ Smaller, local, profit-based private organisations providing
services to the general population, focused on the region
(examples might include boards.ie, everymum.ie, etc.)
+ Small, non-profit forums set up by locally-based and -focused
organisations such as soccer clubs, or school parents'
associations[fn:useFacebook:There is often the temptation to
advise these organisations to use larger platforms like
Facebook or Google. Some organisations may not want to avail
of those services, and the reasons for this are not
relevant. What's important is that deciding not to use these
platforms is valid, and these decisions should be protected
and encouraged, not inhibited.]
+ Individuals, hosting their own platforms.
- The good-faith efforts of the operation to respond to
accusations of harm.
- The capacity of the service to respond -- smaller operations
can't afford 24-hour monitoring to respond to such accusations,
and the law should not require it. Such services should be able
to avail of bad-faith actors seeking to interfere with their
operations by overwhelming them with false accusations of harm
that need to be dealt with.
- Who the accuser is -- public figures should be prevented from
using accusations of "harmful content" to remove information
that is merely critical of them or their behaviour.
*** CONSTODO Question 16 -- Thresholds
This submission is not providing an answer to this question.

99
fosta-sestaRant.org Normal file
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@ -0,0 +1,99 @@
#+latex_class: article
#+latex_class_options:
#+latex_header:
#+latex_header_extra:
#+description:
#+keywords:
#+subtitle:
#+latex_compiler: pdflatex
#+date: \today
#+TITLE: /FOSTA/SESTA/ Rant
#+AUTHOR: Éibhear Ó hAnluain
#+EMAIL: eibhear.geo@gmail.com, 086 8565 666, http://www.gibiris.org/eo-blog/
#+OPTIONS: ^:{} toc:nil H:4 num:t author:t email:nil
#+TODO: CONSTODO CONSNOTES | CONSDONE CONSDONTDO
* CONSTODO The distinction between user behaviours and online services :noexport:
The internet is awash with online harassment and harmful
communications, and responsible governments and legislators have
been trying for decades to do something about it.
However, it's no less true in this sphere than in any other that
"doing something" is not necessarily enough to address the problem:
doing only the /right thing/ it what's required.
In the first of his 6 Laws of
Technology[fn:6laws:https://en.wikipedia.org/wiki/Melvin_Kranzberg#Kranzberg's_laws_of_technology],
Dr. Melvin Kranzberg determined that "Technology is neither good nor
bad; nor is it neutral." The tempation on observers is to decide
that the extent of online harassment, abuse and harmful
communications is because of the existence of online services, and
that if only we could force the services to implement their
technologies in a particular manner, all the problems will be
solved.
For instance, the United States of America recently enacted a law
known as the "Stop Enabling Sex Traffickers Act", or
/FOSTA-SESTA/[fn:FOSTA-SESTA:https://en.wikipedia.org/wiki/Stop_Enabling_Sex_Traffickers_Act]. This
was a law to show that the U.S. Congress was doing something to stop
sex-trafficking. The law made it an offence for online services to
"knowingly [assist], [support], or [facilitate]" sex-trafficking,
and it removed from online services speech-related protections that
had been previously provided under another U.S. law known as the
"Section 230 of the Communications Decency Act".
Accounts show, however, that doing *this* was not effective, and has
been counter-productive. As expected, a number of websites that had
been used to legally advertise sex services in the United States
either shut down that section of their service (e.g. Craigslists'
"Erotic Services"), or shutdown completely[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]. If the goal of the
law was to protect sex workers, and women in particular, it has had
the opposite effect:
- Independent sex workers now have no online means to promote their
services, forcing them to turn to pimps for this.
- There has been a notable increase in the number of sex workers who
have gone missing.
- Some sex-workers have died by suicide.
- Assault and rape of sex workers has increased, and many fear that
murders of sex workers are also
increasing[fn:craigslisthomicide:http://www.econlib.org/archives/2018/01/craigslist_redu.html].
- Sex workers have no means to learn about their potential clients
prior to the client knowing about them: where they could vet
people who made contact with them over these services before
identifying themselves, this is not possible anymore, and
dramatically increases their risk.
- Ironically, one of the negative effects of /FOSTA-SESTA/ is that
it is now much harder for the police to investigate rapes,
assaults and murders of sex workers than before, because a
critical trail of evidence -- the online communications between
offenders and sex-workers -- now can no longer be
laid[fn:FOSTAPolice:https://www.techdirt.com/articles/20180705/01033440176/more-police-admitting-that-fosta-sesta-has-made-it-much-more-difficult-to-catch-pimps-traffickers.shtml]. This
is not least because the websites are no longer there, but because
when they were (e.g. Backpage), they assisted the police
investigating these crimes against sex workers; advertising was
legal back then, and now it's not, the police won't get the help
from web sites when they need
it[fn:SESTAPolice:https://www.techdirt.com/articles/20180509/13450339810/police-realizing-that-sesta-fosta-made-their-jobs-harder-sex-traffickers-realizing-made-their-job-easier.shtml].
This was predicted, but by advocates for sex workers and for free
speech, and legislators failed to heed the warnings. In fact, when
considering this law, legislators were presented with statistics
that were false, and misrepresented the landscape prior to enacting
/FOSTA-SESTA/[fn:buzzfeed:https://www.buzzfeednews.com/article/jennyheineman/sex-trafficking-myths-sesta-fosta].
I highlight this law in particular because it is both recent
(early 2018) and relevant. However it's not alone, and as we look at
pending legislation coming to us both domestically and from the EU,
it's hard not to see the same failures repeating:
- Pat Rabbitte's and Lorraine Higgins' bills, since withdrawn
- The EU Terrorism Content Directive...
- The new Copyright Directive...
-