diff --git a/HarmfulCommunications201908.org b/HarmfulCommunications201908.org index 4020c4a..d7032a8 100644 --- a/HarmfulCommunications201908.org +++ b/HarmfulCommunications201908.org @@ -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. diff --git a/fosta-sestaRant.org b/fosta-sestaRant.org new file mode 100644 index 0000000..394f687 --- /dev/null +++ b/fosta-sestaRant.org @@ -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... + - +