Tag: mike masnick

Should Revenge Porn Be a Federal Crime?

First, for those lucky enough not to know, “revenge porn” is the term used to describe the practice (usually by disgruntled ex-boyfriends) of distributing nude or sexually explicit images of people via the Internet without permission.  Once out there, as we all know, images and videos can end up anywhere, copied and redistributed by anyone; and this includes websites designed specifically to profit from traffic drawn to revenge porn.  In some cases, owners of these sites have even extorted money from victims in exchange for removing their likenesses from these sites.  Nobody writing editorials or legal opinions on the matter defends the practice itself.  We all agree that posting these intimate images without permission and violating that trust is a despicable practice. Where opinions diverge is what to do about it from a legal perspective.

Representative Jackie Speier (D-CA) is the lead sponsor of a bill that would make revenge porn a federal crime in the U.S., and the bill is set to be introduced in the House in coming weeks.  While some states have passed laws prohibiting revenge porn, and other existing laws already criminalize several of the actions required to perpetrate revenge porn (e.g. hacking or stealing data), the rationale for making revenge porn itself a federal crime is apparently Sec. 230 of the Communications Decency Act.  Section 230 provides safe harbors for site owners, who cannot be held liable for the actions of third parties using their sites.  These safe harbors do not apply to liability for federal crimes such as child pornography and copyright infringement; so enacting Speier’s bill would not only provide the grounds for prosecuting the individual perpetrators of revenge porn, but it would provide a legal basis for prosecuting site owners anywhere in the U.S. that host revenge porn.  On the other hand, some concerns have been raised that if Speier’s bill were to become law, it would jeopardize free speech by circumventing the intent of Sec. 230 of the CDA.

Last April, Mike Masnick at Techdirt wrote a post that dispassionately suggests this bill could undermine safe harbors and foster censorship of legal and sanctioned material.  To quote:

“By spreading liability, you guarantee over-censorship. It’s easy for people who are narrowly focused on a single issue to not recognize the wider impact that issue may have. Trying to accurately describe what “revenge porn” is for the sake of criminalizing its posting, will almost certainly have chilling effects on third parties and undermine the very intent of the CDA’s Section 230.”

I don’t think Masnick is quite right to say that it is hard to describe what revenge porn is. I defined it above, he defined it in his post, others have defined it in other editorials. Admittedly, though, revenge porn is a problem different from child pornography, which is addressed simply by making all sexually explicit material involving minors illegal to produce, distribute, or possess.  But in the world of adults, how does one distinguish between an amateur nude shared by permission and one distributed without permission; and then where do we draw the lines of responsibility for that distribution given the chaotic nature of digital reproduction and distribution?  Still, it seems as though fears of “guaranteed,” rampant censorship are a bit overwrought in this context.

With regard to criminalizing revenge porn, the results I imagine we want ought to be legislatively achievable without chilling free speech.  We should want to prosecute the individual who initiated the unauthorized distribution, and we’d want to prosecute the site owner who knowingly and specifically trades in revenge porn.  And it is not clear why this narrowly-focused goal must lead to censorship anymore than statutes criminalizing child porn.

The concern Masnick and others appear to be raising is that innocent site owners, fearful of criminal liability, will be motivated to over-censor their own sites through TOS policies, and that will have a chilling effect on speech.  But this seems reactionary, given the very specific nature of the crime.  For instance, one way to indemnify site owners in this case would be to create a DMCA-like provision that enables a victim of revenge porn to demand removal of her/his private images and gives the site owner no option to refuse. If the site owner complies with the request, no liability should exist.  At best, victims of revenge porn should have as easy a mechanism as possible for removal of the unauthorized content; at worst, if the claimant isn’t really a victim of revenge but simply wants her photos removed, can anyone rationally claim free speech will suffer from this “abuse” of the new law? In such a case, she may be falsely accusing an individual of a crime, which is a serious offense, but not a First Amendment issue.  Regardless, the claimant should have to be the victim herself, so abusing the law to chill speech seems unlikely.

Another factor to consider with proposed criminalization of anything is whether or not the law would act as a deterrent.  Unfortunately, criminal penalties often do not deter criminal behavior; but in this case, I suspect making revenge porn a federal crime would have demonstrative mitigating effect, if, in fact, most of the sources of these images are grumpy ex-boyfriends acting rashly.  Criminals with profit or survival motivations and individuals with various psychoses are not easily deterred by the threat of prosecution, but regular guys just being stupid often are deterred by the law.  And in this regard, criminalizing revenge porn is an important step toward a more enlightened and civilized, digital future. It has become too easy to cause harm to someone by remote control, cloaked in anonymity, and normalizing this behavior is a betrayal of the original goals of the Internet.

Interestingly enough, last month, Google announced and then retracted new policy for its blog-hosting site Blogger that would appear to have censored legal and consensual, sexual content.  Originally meant to take effect on the 23rd of this month, Google stated that sexually explicit material would not be allowed on Blogger unless it provides “public benefit, for example in artistic, educational, documentary, or scientific contexts.” I have to say that’s some rather subjective language coming from a company that repeatedly states it “cannot be responsible for policing the Internet” with regard to criminal or offensive activities. Ever since the Deep Throat case, nothing in the law even presumes to make such distinctions with regard to censorship of explicit material, but Google’s TOS almost did, if it were not for the backlash from thousands of users, particularly those who post sexually explicit articles, photos, and videos. One of these bloggers, Zoe Margolis, even used the words “it breaks the Internet” to describe Google’s proposed policy to make all sex-oriented blogs private rather than public. Was Google motivated to change the Blogger TOS in anticipation of the success of Congresswoman Speier’s proposed bill, or was the company’s sudden priggishness motivated by some other factor?  Margolis suggests a financial incentive — that Google didn’t want to be hosting “free porn,” and this ought to at least give my friends with copyright interests reason to chuckle at that particular hypocrisy.

Regardless, I think the point in this context is that the amount of “censorship” on the web is a dynamic (dare we say evolving?) process that is driven as much by the business interests of the major site owners as by any particular statutes.  While I agree that free speech must always be a foundation of these debates, I believe it is incumbent upon us as a decent society to address the fact that new technologies create new ways for bad actors to rather casually cause great harm to individuals who cannot defend themselves. And this is hardly the first time we’ve had to seek a balance between liberty and justice.  Avoiding criminalization of a behavior like revenge porn for fear of some very improbable forms of censorship sounds like a cop out to me.

Techdirt’s Masnick reveals own irrelevance.

Mike Masnick, editor and founder of Techdirt often writes like a smug frat boy, substituting scorn for ideas, and is frequently careless about fact-checking. This may be be why his mantra sounds sillier every day, as he bangs on about all that is wrong with just about anyone who believes copyright still plays a role in the digital age.  Seriously, other than die-hard myrmidons, is anyone still listening to what he’s saying?  Because he’s in danger of becoming the poster child for everything that is wrong with the very things he purports to defend.

Most recently, Masnick revealed his capacity for carelessness when he wrote this blog post about an event he did not attend, focusing on two words taken way out of context, and then making no effort to confirm the basis of his tantrum.  The subject was a recent conference hosted by the Center for the Protection of Intellectual Property, which included panelist Sandra Aistars, CEO of Copyright Alliance. (I have worked with both organizations.) Masnick claims in his post that Aistars was “insisting that the efforts for copyright reform are really coming ‘from criminal elements’ and that no one in ‘any sort of innovative sector’ is actually on board with copyright reform.”  Had Mike bothered to wait for the video of that meeting, he might have heard  the following, in which Aistars adds to her recap of 40 years worth of debate and discussion on copyrights thus:

And an element that goes a little bit further than what we’ve heard before and almost seeks the entire elimination of intellectual property protection, and that element I think is coming in its most aggressive form not from any sort of innovative sector in any business, but is coming more from the, I’ll call them “criminal elements,” cyberlockers, entities like that who support and benefit from cyberlockers, and they are not interested intellectual property in any way, and I think those of us who rely on intellectual property in our business lives are just collateral damage. 

So, in case any Techdirt readers (or editors) need that simplified, Aistars is making a very clear distinction between real innovators — whose voices she welcomes and has always welcomed to any discussion — and actual criminals who really don’t deserve a seat at the table.

And speaking of not deserving a seat at the table, people who are incapable of presenting ideas that challenge the imagination beyond cheap sarcasm and false reporting have clearly lost contact with the nuanced evolution of this ongoing debate.  In other words, when you just start making shit up as an excuse to keep calling everyone who supports copyright a “maximalist” (whatever the hell that means), it might be a sign you’ve run out of things to say.  By coincidence, I happen to be on my way to attend a similar event hosted by CPIP as I write this, and all of the topics for discussion are written humbly in the inquisitive and not in the conspiratorial imperative that guys like Masnick like to imply.  Experienced adults are trying to solve problems and come up with new ideas; and all the sniping from the kids’ table doesn’t speak well  for the cause of the Internet as a medium for enlightened discourse.

UPDATE:  It looks like while I was writing the above, Mike updated his own post in order to both reveal the full quote in context and then stand by his bizarre assertion.  All I can say is that perhaps what Aistars ought to have said is that the copyright debate is being skewed by a criminal element and also some really stupid people.

“More YouTube’s” My Foot

First of all, name if you can the serious competitors of any of the following: Facebook, YouTube, Amazon, eBay, Twitter, Google.

Go back ten years, name the biggest sites on the web, and you might notice that some of those names are either gone or really quite small compared to the dominant sites today. It isn’t even necessarily sinister, but it is a fact that the Web doesn’t tend to foster competition so much as it fosters monopolies — some short-term, others long-term.  In the potentially short-term monopoly category, we might look at Facebook’s current dominance and recognize that the company could make a misstep that turns us all off (or we could just get bored), and the site would evaporate into MySpace obscurity.  In the long-term category of web-based monopolies, we look at an Amazon and understand that its elaborate and capital-intensive fulfillment system would be very hard to replicate or beat rapidly enough to realistically grab much of its market-share.  And then, we look at a YouTube, which is somewhere between a Facebook and an Amazon inasmuch as there are other video hosting options but none that are owned by the company that also owns (i.e. controls) more than 90% of search worldwide. So, if you want to use video to promote yourself, your business, your ideas, your work, or even your shaking booty, YouTube is really your only option. And Google likes it that way.  What company wouldn’t?

Still, mere market dominance and unlimited wealth isn’t enough for some people; they want your soul, and they’ll tell you any lie in order to get it.  For instance, I offer this brief article about a panel discussion called Expand NY on which some of the usual suspects sat agreeing with one another about the future of copyright, all predicated on the assumption that copyright is just one legal framework that remains an out-of-date barrier to future economic growth in the digital age.  But even if you don’t give a damn about copyright, pay attention, because like I say, these people want your soul, by which I mean to argue that companies like Google ultimately want a world where people no longer believe they have a right to privacy or a right to control how their words or images are used.  The war against copyright should be viewed by the general public as the precedent-setting, legal groundwork for a world in which certain civil rights simply cease to exist.  And when your kids’ birthday video can be used to sell McDonalds without your permission, you might find the expression “steal your soul” is no exaggeration.

But what does that have to do with the panel discussion in New York? If a premise is false, the conclusion is also false. And the reason I draw attention to this discussion is not to argue about its conclusions — that copyright may or may not need updating — but that people with false, even dangerous, premises have no business in the debate. The premise being put forth is that a framework like copyright is stifling economic potential in the digital age, but the reason we can know this is a false premise — other than the 20 years of history — is that Julie Samuels of the Electronic Frontier Foundation says it’s a false premise when she overreaches with a really big and tactically dumb lie.  At the bottom of the article, Samuels is quoted as saying, “We want a thousand more YouTubes,” and this is meant to be an example of that as-yet untapped potential growth supposedly being stymied by pesky copyrights.  But who is it that wants a thousand more YouTubes?  Google certainly does not, and anyone who believes otherwise is a sucker.

So, if by “we,” Samuels presumes to mean “we the people,” then we the people can do the math and see that there will never be so many as three more YouTubes in a world where there remains only one Google encoding the fate of all Internet search. At a certain point, the cost of entry for a presumptive competitor is too high for the same reason you’d be hard-pressed to replicate what Amazon does. And that financial threshold was crossed a long time ago. As Google now earns an estimated $52 billion in annual revenue, I double-dog dare anyone to approach a VC with a business plan to be the “next YouTube.” Copyright may indeed be due for review and even revision to reflect new technological realities, and I certainly agree with one point made by panelist Mike Masnick, that copyright review could be “good or bad depending on who’s involved.” So, if he and his colleagues would stop promoting utter bullshit, maybe responsible review can proceed.