Tag: FOSTA

Techdirt Dissembles on FOSTA in Rebuke of Kristof

In a recent post on Techdirt, Mike Masnick calls columnist Nicholas Kristof a hypocrite based on a narrative Masnick just plain made up.  On December 12, Kristof published a brief column in The New York Times with a picture of a 12-year-old girl who is starving to death as a victim of the US-backed, Saudi-Arabian war in Yemen.  The girl is naked but for a diaper and a bandage on her foot, and the image of her skeletal, wasting body is truly humbling, which is why Kristof says he devoted so much of the page to the image itself.  

After the story was posted on Facebook, the social platform apparently kept deleting the photograph, which prompted the following tweet from Kristof on December 16:

Facebook seems to have repeatedly blocked the photo of Abrar that went with my column:  Come on, Facebook! If you want to end these horrifying images of starving children in Yemen, then help end the U.S.-backed Saudi war that causes the starvation.

Kristof’s complaint was then seized upon by Masnick, who concocted a typically sarcastic “gotcha” on the premise that because Kristof backed the counter-sex-trafficking legislation known as FOSTA (Fight Online Sex Trafficking Act), he has no right to “whine” about Facebook removing this photo for its “sexual content.”  True to form, Masnick smugly alleges that Kristof knew nothing about how FOSTA worked, despite the fact that Masnick grotesquely misrepresents the law, as well as the nature of Facebook moderation, in his post.

Without even getting into FOSTA, anyone who has been on Facebook for the past decade or so knows that the platform has often removed images—even fine art—that some moderator believed violated its “community standards.”  Facebook has been making these, often laughable, mistakes since long before anyone introduced the legislation that became FOSTA and which passed into law in April of this year.  In fact, Masnick’s recent post cites one of his other posts from 2016 criticizing Facebook for censoring the iconic, Pulitzer Prize winning photo of the naked Vietnamese girl running from a napalm strike.  

Notably, the removal of that famous photograph was actually mentioned in the documentary The Cleaners, which I wrote about in November, and which profiles the Philippines-based  moderators to whom Facebook has outsourced most, if not all, of its “community standards” oversight.  The documentary reveals a melange of human fallibility in the decision-making behind content moderation, and Kristof’s photo might have been repeatedly removed for being “disturbing” rather than “sexual.” 

Regardless, the broader point is that millions of images a day are processed by these young moderators—and they are required to meet quotas—whose culture is not grounded in American principles of speech, press, etc., and it is almost impossible to generalize about their motivations and judgment calls.

At the same time, even if, in the most depraved imagination, someone could identify Kristof’s photo of this poor child as “sexual,” then it would simply violate child pornography laws, which predate FOSTA, predate Facebook, and even predate the birth of Mark Zuckerberg.  Yet, somehow The New York Times published the image, which nobody seems to have confused with pornographic exploitation.  All of which is to say that neither the Facebook moderation regime nor Kristof’s specific complaint about the photo, which no sane person could confuse as “sexual,” has anything to do with FOSTA.

As explained in several posts, what FOSTA does is affirm that no internet service provider is automatically immunized against criminal or civil allegations of contributing to sex-trafficking.  FOSTA does not mean that a plaintiff who brings a claim has any less burden to prove a platform’s culpability in that crime.  (Y’know, the way the law works.)  In fact, all one needs to do is look at the volume and nature of the evidence gathered against Backpage to see that proving a contributory role in sex-trafficking takes a hell of a lot more than hosting some “nudity.”

While it is possible that, in an abundance of caution after passage of FOSTA, attorneys at Facebook recommend simply removing anything that can even remotely be deemed “sexual,” it is also evident that the platform was generally doing this long before FOSTA.  Next, the platform will, and should, remove material that is patently child pornography.  And finally, the attorneys at Facebook are well aware that hosting content which may be used as evidence of “contributing to sex-trafficking” is a distinct and high bar for a would-be plaintiff to meet.

So, it is a leap and a half to allege that platforms are now over-censoring as a result of FOSTA, to say nothing of the current reality that Facebook has way bigger content moderation problems right now.  In this regard, I think the folks at Techdirt, and everyone else, ought to be more concerned that Facebook cannot seem to distinguish between a third-party like The New York Times and just some other account holder.

It ought to be a simple enough, internal practice to determine that if a mainstream news company—which is also not immunized against allegations of illegal conduct—can publish an image without legal jeopardy, then Facebook can safely host the same image.  Why this does not appear to be the case has everything to do with the platform’s overall management and nothing to do with FOSTA.  

I’ll leave it to the judgment of the reader to consider Masnick’s labeling Kristof as having a “savior complex” for his interest in starving children and trafficking victims.  But given the choice between a guy who wants to save kids and a guy who wants to save legal liability shields for mega-corporations, well, let’s just say Mike may not make the Nice list this Christmas.

FOSTA passes House. Internet should be broken any day now.

Is the internet broken yet? I suppose if you’re reading this, it isn’t. And if you’re not reading this, you’re looking at something else. On the internet.

Yesterday, the House passed the hotly-contested FOSTA, which is now the acronym for the anti-sex-trafficking legislation that combines the earlier bill SESTA with various amendments. Eric Goldman has called the progeny a Frankenstein, a “worst of both worlds” bill that will only aggravate what he calls The Moderator’s Dilemma, meaning that internet platforms wanting to avoid potential liability for facilitating sex-trafficking will be stuck with two options: either moderate everything, which is impossible for some sites; or moderate nothing, which will disincentivize sites from acting responsibly, including the moderation of possible sex-trafficking content.

The argument that this legislation won’t help any victims of sex-trafficking, and might even make matters worse, has been echoed by the EFF and other “digital rights” organizations, including Mike Masnick in a recent post-game, Techdirt tirade, lashing out at various players in the industry, including Facebook, for fumbles and other tactical errors that allowed this legislation to succeed. All parties who’ve stood in opposition to these bills have complained about the political reality that nuanced arguments can be tough to present without looking like they’re being soft on sex-traffickers. And I understand how frustrating that can be. It’s almost like trying to discuss the finer points of copyright law while a mob is labeling you a draconian, Luddite, speech-hating, maximalist.

Nearly all parties expect this bill will sail through the Senate and become law, and time will tell whether it provides any form of remedy for the victims of sex-trafficking or, as the critics claim, creates undue liability for innocent site owners while doing nothing to address the underlying problem. But apropos concerns about Goldman’s Moderator’s Dilemma, it is important to remember that the alternative proposal is to maintain the status quo under which the site Backpage was generally held to be immune from both civil and criminal liability, despite sufficient evidence to indicate that a case against its owners should at least go to trial.

In an earlier post on this subject, I labeled the critics of anti-trafficking legislation the NRA of cyber-policy on the grounds that their approach appears strikingly similar when it comes to defending the absoluteness of the liability shields crafted in the late 1990s, at the birth of the commercial internet. In the present climate, it’s hard not to compare this advocacy with the calcified view of the Second Amendment insisted upon by gun-rights activists conflating civil rights with the profit motives of firearms manufacturers. Like the NRA, the EFFs of the world seem determined to accept only a maximalist approach to policy, even where some minimal amendment might do some good.

By “minimal” in this context, I mean that the fundamental safe-harbor mechanism in the Communications Decency Act doesn’t change substantively from what it was before these bills, other than to explicitly state that it was never the intent of Congress to provide immunity for alleged profiteering from sex-trafficking. Moreover, the population of internet enterprises that will even need to take notice of this new law is quite small. One’s business either has to be in some way involved in the sex trade (e.g. host adult ads), which is a limited set; or one has to host a large volume of user-generated content (e.g. YouTube, Facebook), which is also a limited set, but one that can afford compliance as these are some of the wealthiest companies in the world. Meanwhile, the remaining 99.X% of the internet should keep plugging along without feeling any particular urgency in a post-FOSTA environment.

I certainly can’t claim that FOSTA is without flaws—or even that I have the expertise needed to identify exactly what those flaws might be. But as imperfection is a natural characteristic of most legislation, this is supposedly why we have a judiciary tasked with interpreting statutes—and why I say that only time will tell whether this new law will achieve its intended benefits or yield unintended consequences. In either case, consumers who use the internet are unlikely ever to notice any change at all; and if even a few victims of sex-trafficking are actually helped in some way, this seems like an easy choice.

Meanwhile, I remain doubtful that the volume of doomsday rhetoric aimed at the anti-trafficking bills is ultimately about this legislation per se. One reason it seems clear that no provision would ever satisfy the staunchest critics—the EFF will even rail against voluntary measures instituted by industry—is that the slightest adjustment to the safe harbor shield in the CDA implies that perhaps the safe harbor can be amended in the DMCA, too. And that poses an existential threat—not to the internet, of course, just to the maximalists hellbent on defending laws passed in 1996 and ’98 as though they must be the last word for all eternity.

Google Says Humbug to Child Sex-Trafficking Victims

Just in time for Christmas, it seems Google is up to its Grinchy tricks in the House of Representatives, allegedly the big gun behind an effort to undermine the anti-child-sex-trafficking bill FOSTA, which is the House version of the Senate’s SESTA.  Because these bills propose to amend the liability shield in Section 230 of the Communications Decency Act (1996), the major tech firms, along with organizations like the Electronic Frontier Foundation, have worked to clobber the proposals, lobbying Members of Congress and promoting anti-SESTA campaigns to the public.

Shortly after representatives of Facebook, Google, and Twitter endured some uncomfortable grilling on the subject of Russian disinformation campaigns, the Internet Association endorsed SESTA in early November.  But according to a new editorial in The Hill by Mary Mazzio, it looks like Big Tech lobbyists are orchestrating a bill swap in the House, proposing an approach that avoids amending Section 230. Mazzio is the writer/director of the trafficking documentary film I Am Jane Doe, which apparently inspired legislative action on this issue in the first place.  She states in her article…

“This full replacement of FOSTA was done under cover of darkness, quickly and quietly, with no input on the specific language from the NGO community, victims or survivors. The bill, which now amends the Mann Act, fails to address the Section 230 problem identified in the 1st Circuit, and worse, strips away civil remedies from survivors as well as states attorneys general. The language also appears to permanently foreclose all private rights of action which victims currently have under the federal trafficking statute.”

Her reference to the 1st Circuit is to the case Doe v. Backpage in which the court read the Section 230 statute broadly enough to hold that Backpage’s owners were entirely shielded from civil litigation pursued by several trafficking victims who blamed the site for facilitating their victimization by sex-traffickers. In response to a still-developing body of evidence implicating Backpage’s active role in the trafficking of minors, Congress has sought to at least clarify that the “safe harbor” provision of Section 230 is not meant to shield online services from liability for this type of conduct.

The internet industry, with substantial help from the EFF, has tried to characterize these bills as harmful to free speech and innovation (again) and have promoted a limited body of scholarship claiming that the bills will do more harm than good for victims.  I have written several responses to the anti-SESTA campaign, but Ms. Mazzio sums it up in her description of the alleged new proposal now sitting in the House Judiciary Committee.  “The net result is a new bill which genuflects to the altar of business practices and profitability where children and trafficking victims are collateral damage.”

Collateral damage is exactly right. It’s a concept that musicians and other artists know all too well—not that their losses are comparable to what trafficking victims endure, only that the policy agenda is very familiar.   But this is the price Google & Friends say must be paid in the interest of “internet freedom,” which is actually a euphemism for their liability shields.

Big Tech’s absolutism on Section 230 is this industry’s version of the NRA saying that “spree killings are the price we pay for freedom.”  In fact, if we put it that bluntly—children being sold to be systematically raped is the price we pay for internet freedom—it seems just a little defeatist and lacking in moral authority, least of all in the year when Americans have declared they’re turning the tables on sexual harassment. It seems to me if the Democrats in Congress felt an urgency to shed both Conyers and Franken in the current climate, that it is probably not too much to ask that they give serious attention to the FOSTA proposal, keeping only the victims the foreground, and let Google’s interests be damned.

It’s hard to say that these bills will categorically help trafficking victims; they are a limited remedy at best, given the hideous nature of the crime.  But I’d like to believe we can all agree that the financial interests of the world’s largest company are less important than an effort to mitigate such egregious harm being done to kids. It is rather astounding to see that netizens (whoever the hell they are) are so self-righteous about the Net Neutrality thing that they’ll justify racist attacks and death threats aimed at Ajit Pai.  But some of these same good people are willing to allow children to be collateral damage just because Google & Co. say “free speech.”  If that’s really who we are, somebody show me how to actually break the internet because I’m all for it.

Photo by alexkich