Victory! Lawsuit Challenging FOSTA Reinstated by Court

SAN FRANCISCO–A lawsuit challenging the constitutionality of FOSTA, a federal law that has driven marginalized communities and speech about sex and sex work offline, was reinstated today in a court ruling that recognizes the statute poses a substantial threat to free speech.

The U.S. Court of Appeals for the District of Columbia ruled that two plaintiffs in the lawsuit—brought by Woodhull Freedom Foundation, Human Rights Watch, Alex Andrews, the Internet Archive, and Eric Koszyk to block enforcement of the Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA)—had “standing” to pursue their constitutional challenge to the statute. The lawsuit argues that the act expansively criminalizes online speech related to sex work and removes important protections for online intermediaries in violation of their First Amendment rights. The plaintiffs are represented by EFF, Davis, Wright Tremaine LLP, Walters Law Group, and Daphne Keller.

“We are pleased the court recognized that the law’s undefined and vague terms can sweep up constitutionally protected speech and potentially lead to federal, state, and local criminal prosecution, as well as civil liability,” said EFF Staff Attorney Aaron Mackey. “The court’s ruling recognizes that plaintiffs face a substantial threat of broad criminal and civil liability merely for speaking online or hosting forums that support sex workers.”

FOSTA makes it a felony to use or operate an online service with the intent to “promote or facilitate the prostitution of another person,” vague terms with wide-ranging meanings that can include speech that makes sex work easier in any way. FOSTA also expanded the scope of other federal laws on sex trafficking to include online speech, and reduced statutory immunities previously provided under  Section 230 (47 U.S.C. § 230). The plaintiffs sued to block enforcement of the law because its overbroad language sweeps up Internet speech about sex, sex workers, and sexual freedom, including harm reduction information and speech advocating decriminalization of prostitution.

Craigslist and Reddit have shut down personals sections, even non-sexual ones, and sites supporting sex workers have censored themselves for fear of running afoul of the law.

A federal judge dismissed the case, ruling that the plaintiffs lacked “standing” because they failed to prove a credible threat that they would be prosecuted for violating FOSTA. Because the court dismissed the case on procedural grounds, it did not rule on whether FOSTA is constitutional.

The appeals court reversed, finding that plaintiffs Alex Andrews and Eric Koszyk had legal standing. The court ruled that Andrews, who runs a website for sex workers called Rate That Rescue, faced a credible threat that FOSTA would be enforced against her. With respect to Koszyk, the court ruled that he had shown that FOSTA harmed his ability to advertise his therapeutic massage business because, in the wake of FOSTA’s passage, Craigslist shut down the section on its site that hosted his advertisements and prevented him from posting them anywhere on its site.

EFF and co-counsel in the case argued that plaintiffs don’t have to wait until they face prosecution before challenging a law regulating speech when, as here, the vague and overbroad prohibitions of the law are causing numerous speakers to censor themselves and their users.

“The court agreed that the plaintiffs have shown that their First Amendment rights are under threat,” said Mackey. “We look forward to giving them their day in court to show that FOSTA is unconstitutional.”

For the decision:
https://www.eff.org/document/woodhull-appeals-court-ruling

For more on this case:
https://www.eff.org/cases/woodhull-freedom-foundation-et-al-v-united-states

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Author: Karen Gullo

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Don’t Write Copyright Law in Secret

We’re taking part in Copyright Week, a series of actions and discussions supporting key principles that should guide copyright policy. Every day this week, various groups are taking on different elements of copyright law and policy, addressing what’s at stake and what we need to do to make sure that copyright promotes creativity and innovation.

The United States is the world’s chief exporter of copyright law. With recent news that President Trump is expected to sign the US Mexico-Canada (USMCA) trade agreement next week, we’re one step closer to Canada being forced to align with the US copyright duration to life of the author plus 70 years, keeping important works from being able to enter the public domain for another 20 years.

The USMCA requires participating countries to have a copyright term of at least 70 years. In practice, this measure will affect only Canada: in the United States, copyright lasts 70 years already, and in Mexico it’s even longer (100 years). Only Canada has stuck with the 50-year minimum required by the Berne Convention.

It’s a common story: again and again, trade agreements bring longer copyright terms to participating countries under the banner of standardization, often with the United States. But that “standardization” only takes place in one direction, toward more restrictive copyright laws. The failed Trans-Pacific Partnership Agreement (TPP) would have lengthened copyright terms for several participating countries. It also would have brought US copyright’s protection for digital locks to participating countries.

The USMCA is just the latest example: when copyright terms are negotiated in private, multinational agreements, it tends to favor the interests of large media companies. Countries should decide their own copyright laws by inclusive, democratic processes, not through secret negotiations.

Those copyright law expansions bring real threats to human rights in the countries where the United States exports them. In 2011, Colombian graduate student Diego Gomez shared another student’s Master’s thesis with colleagues over the Internet, sparking a six-year legal battle that could have put him in prison for years.

While Diego’s story has become a rallying cry for advocacy for open access to research, it’s important for another reason too. It shows the dangerous consequences of copyright-expanding trade agreements. The law Diego was tried under had a sentencing requirement that lawmakers passed in order to comply with a trade agreement with the U.S.

Trade agreements that expand copyright almost never carry requirements that participating nations honor limitations on copyright like fair use or fair dealing, leaving many countries with strong protection for large rights-holders and weak protection for their citizens’ rights.

Copyright should not be a global monolith. Differences between countries’ copyright laws are a feature, not a bug. In implementing copyright law, lawmakers should carefully balance the rights of copyright holders with the rights of the public to use and build upon copyrighted works. Lawmakers can’t make that balance when their trade negotiators have already given the public’s rights away.

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Author: Elliot Harmon

When Computer Crimes Are Used To Silence Journalists: Why EFF Stands Against the Prosecution of Glenn Greenwald

This week, prosecutors in Brazil filed a criminal complaint against Glenn Greenwald, an internationally lauded journalist best known for publishing leaked documents detailing the NSA’s mass surveillance. Greenwald’s prosecution is an attempt to use computer crime law to silence an investigative reporter who exposed deep-seated government corruption. Sadly, this isn’t the first such effort and, unless we stop this drift to criminalizing journalism, it likely won’t be the last.

Legal prosecution and character attacks are familiar tools used to silence investigative journalists who expose corruption. The use of cybercrime laws to do so, however, is relatively new.

Greenwald has faced a prolonged and complicated legal standoff in Brazil since he published documents showing that a federal judge in Brazil colluded with prosecutors to convict former leftist president Lula da Silva. That conviction was crucial to preventing da Silva from running in the last election, which was instrumental in Brazil’s far-right president Jair Bolsonaro successfully ascending to power. Greenwald published private chat conversations, audio recordings, videos, photos, court proceedings, and other documentation provided by an anonymous source showing, among other things, the collusion between prosecutors and the judge, who has since been appointed as Brazil’s top judicial minister.

Since those articles were published, Greenwald and his family have dealt with legal threats (including a statement from President Bolsonaro that Greenwald could “do jail time”), death threats, and homophobic persecution.

Unfortunately, legal prosecution and character attacks are familiar tools used to silence investigative journalists who expose corruption. The use of cybercrime laws to do so, however, is relatively new.  This case is garnering special international attention in part because the current charges fly in the face of a decision by the Supreme Court of Brazil last year, in which the Court preemptively halted investigations against Greenwald. That decision upheld the rights of journalists to communicate directly with their sources, and stated that Greenwald’s acts deserved constitutional protection—regardless of the content published, or its impact on government interests.

In an apparent attempt to circumvent the ruling, the charges now include “intruding computer devices.”

Around the world, cybercrime laws are notoriously hazy.  This is in part because it’s challenging to write good cybercrime laws: technology evolves quickly, our language for describing certain digital actions may be imprecise, and lawmakers may not always imagine how laws will later be interpreted. And while the laws are hazy, the penalties are often severe, which makes them a dangerously big stick in the hands of prosecutors.  Prosecutors can and do take advantage of this disconnection, abusing laws designed to target criminals who break into computers for extortion or theft to prosecute those engaged in harmless activities, or research—or, in this case, journalists communicating with their sources.

In 2018, EFF published an extensive report on the use of computer crime law to criminalize security research across the Americas. We offered guidance on how cybercrime laws could better adhere to human rights standards. That includes ensuring that malicious intent is baked into laws from the beginning (“Criminal laws should clarify the definition of malicious intent or mens rea, and avoid turning general behaviors into strict liability crimes.”). Our analysis of numerous computer crime laws in North and South America made clear that many of the current laws were dangerously vague, subject to misuse and over-prosecution of harmless acts, and could have a chilling effect on security research.

With the prosecution of Greenwald, we see how the misapplication of computer crime law can also have a chilling effect on journalism and harm the public’s right to know. Coupling the vague law with the severe penalties it contains,  charging journalists as hackers may become a uniquely powerful tool for silencing those who seek to keep the rest of us informed.

While we don’t yet know all the details of the case against Greenwald, we see no actions detailed in the criminal complaint that violate Brazilian law. Journalists routinely communicate at length with sources, and in fact must do so to ascertain the veracity of any documents. Furthermore, a Brazilian Supreme Court Justice has already declared that Greenwald’s publication of leaked messages was protected under the Brazilian Constitution.

It’s a mark of tyranny to prosecute reporters who truthfully report on government corruption.

Investigative reporters are supposed to reveal corruption and wrongdoing, even when doing so draws the ire of those in power. Few journalists in our lifetime can match Greenwald’s record for fearless reporting about government abuses of power. A free society can not only tolerate the confrontational reporting of talented journalists, but will thrive when articles that reveal and challenge those in power are regularly provided to the public. It’s a mark of tyranny to prosecute reporters who truthfully report on government corruption.

EFF stands with dozens of other civil society organizations in Brazil and across the world in calling on Brazil to uphold the rule of law and drop this political prosecution of Glenn Greenwald.

Note: Both Greenwald and I serve on the board of the Freedom of the Press Foundation, and EFF serves as counsel to the organization. Greenwald was also the recipient of EFF’s Pioneer Award in 2013. 

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Author: rainey Reitman

The Key To Fixing Copyright Is Ending Massive, Unpredictable Damages Awards

We’re taking part in Copyright Week, a series of actions and discussions supporting key principles that should guide copyright policy. Every day this week, various groups are taking on different elements of copyright law and policy, addressing what’s at stake and what we need to do to make sure that copyright promotes creativity and innovation.

What if a single parking ticket carried a fine of up to a year’s salary? What if there were no way to know consistently how much the fine would be before you got it? And what if any one of thousands of private citizens could decide to write you a ticket? What would happen? People would start avoiding public parking and stay home more often. Business would decline. The number of false or unfair tickets would rise. Everyone would lose confidence in the system—and in the law—as parking became a huge gamble.

Something very close to this scenario is a reality in copyright law. Copyright holders who sue for infringement can ask for “statutory damages.” That means letting a jury decide how big of a penalty the defendant will have to pay—anywhere from $200 to $150,000 per copyrighted work, without requiring any evidence of actual financial losses or illicit profits. That’s a big problem for anyone who uses works in lawful but non-traditional ways. Musicians, bloggers, video creators, software developers, and others gamble with these massive damages whenever their art or technology touches another’s work. They risk unpredictable, potentially devastating penalties if a copyright holder objects and a court disagrees with their well-intentioned efforts.

On Copyright Week, we like to talk about ways to improve copyright law. One of the biggest improvements available is to fix U.S. copyright’s broken statutory damages regime. In other areas of civil law, the courts have limited jury-awarded punitive damages so that they can’t be far higher than the amount of harm caused. Shockingly, it’s been determined that large jury awards for fraud, for example, offend the Constitution’s Due Process Clause. But somehow, that’s not the case in copyright—some courts have ruled that Congress can set damages that are potentially hundreds of times greater than actual harm, if it chooses to do so.

Massive, unpredictable damages awards for copyright infringement, such as a $222,000 penalty for sharing 24 music tracks online, are the fuel that powers exploitative litigation business models: law firms and companies that bring dubious claims of infringement against thousands of Internet users, demanding cash settlements to avoid being served with a lawsuit. These businesses, often called copyright trolls, use the threat of statutory damages to coerce settlements, often without doing the work to make sure their accusations are correct.

Statutory damages also magnify other problems in copyright law, and make reform more difficult. The Music Modernization Act, passed in 2018, was the biggest overhaul of the licensing market for songwriters in a generation, addressing a market that nearly everyone agreed was broken. But a minority resisted any reform, apparently preferring the mere possibility of a multimillion-dollar statutory damages windfall to a smaller but steadier stream of royalty payments.

By turning litigation into a game of financial Russian roulette, statutory damages also discourage artistic and technological experimentation at the boundaries of fair use. None but the largest corporations can risk ruinous damages if a well-intentioned fair use crosses the fuzzy line into infringement.

Many reforms are possible. Congress could limit statutory damages to a multiple of actual harm. That would bring U.S. copyright in line with other countries, and with other civil laws like patent and antitrust. Congress could also remove statutory damages in cases where the defendant has a good-faith claim of fair use, which would encourage creative experimentation. Fixing fair use would make many of the other problems in copyright law more easily solvable, and create a fairer system for creators and users alike.

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Author: Mitch Stoltz

The Public Domain Is the Rule, Copyright Is the Exception

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We’re taking part in Copyright Week, a series of actions and discussions supporting key principles that should guide copyright policy. Every day this week, various groups are taking on different elements of copyright law and policy, addressing what’s at stake and what we need to do to make sure that copyright promotes creativity and innovation.

Remember the monkey selfie? Animal rights organizations and a photographer went to court to fight over who owned the copyright in a picture where the photographer set up the camera but the animal took the pic, and great fun was had by all. But as our friends at Public Knowledge noted, maybe no one “owned” the picture.

And that’s just fine. Most of our culture, knowledge, and history isn’t “owned” by anyone at all—it is available for all to use in the vibrant and ever-expanding public domain. This domain is populated by formerly copyrighted material and material that was never copyrightable in the first place. The first category is what most people probably think about when then they think of the public domain: things such as literature, art, music and movies, for which the copyright term has expired or the rightsholder has dedicated the work to the public domain. Under the original U.S. copyright law, each generation was largely free to use the copyrighted material of previous generations, because terms were much shorter (and so was the scope of what could be copyrighted). But terms grew longer and longer until, one year ago, material from 1923 onward finally started entering the public domain each year.  There doesn’t seem to be much appetite to extend U.S. terms further (not so other countries), so presumably these kinds of works will continue to enrich the U.S. public domain.

Meanwhile, the second, less glamorous, category—the one of ideas, facts, procedures, methods of operation, laws, and regulations that are deemed to belong to everyone—has become highly contested.

Judge Louis Brandeis said, “The general rule of law is, that the noblest of human productions—knowledge, truths ascertained, conceptions, and ideas—become, after voluntary communication to others, free as the air to common use.”  Some very powerful interests would beg to disagree.

For example, a pitched battle has been raging for a decade about the copyright in Application Programming Interfaces (APIs), which are, generally speaking, specifications that allow programs to communicate with each other. It’s headed to the Supreme Court in March. The API battle follows on the heels of another dispute over whether the State of Georgia can claim a copyright in its official code, which, by legislative fiat, includes annotations. Meanwhile EFF is representing Public.Resource.Org in a years-long fight over whether private entities can claim copyright in huge swaths of the Code of Federal Regulations.

One thing, other than copyrightability, unites these legal battles: all of them concern content developed by people that did not need a copyright incentive. In other words, they would have done the work (and mostly did do the work) without compensation from copyright royalties. 

As we explained in our first amicus brief in the API litigation, for example, software developers assumed APIs were excluded from copyright protection—but that didn’t stop them from writing and using them. In fact, that exclusion was essential to the development of the home computer, operating systems, programming languages, the Internet, and cloud computing—creating a statutory monopoly in APIs would likely have created a licensing thicket that would have slowed innovation to a crawl.

As for the Georgia Code Annotated, the code itself is developed like most laws, by legislators informed by lobbyists and the general public. All of those people have their own reasons for drafting laws, and none involve earning copyright royalties. The annotations themselves are developed by a private company that might enjoy the royalties, but could get them anyway by simply publishing their own version, without the state’s official imprimatur.

And the last dispute concerns standards, such as the National Fire Safety Code, that are initially developed by volunteers, government officials, and other professionals experienced in the relevant industry, and later incorporated by reference into law. They do the work to contribute to the public interest, mostly without payment, and never receive any royalties for it. The purported copyright holders are the organizations that help organize the process—but those organizations receive ample compensation through dues, selling educational materials, and trainings.

Copyright maximalists denigrate the public domain as the space that creative works “fall into” eventually, once their financial value has been thoroughly exploited. In reality, many more valuable works occupy the public domain than the private one, and its contributors are legion. Their work, and the public domain itself, remind us that the copyright monopoly, and the assumptions it embodies about how to spur creativity, represent a limited exception to the general rule: that most production of knowledge and culture has always taken place within the public domain. Chipping away at the public domain will necessarily inhibit, rather than encourage, new creativity.

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Author: Corynne McSherry

EFF Activists To Demonstrate Against Sell Out of .ORG to Private Equity at Los Angeles Protest

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Rally at ICANN’s LA Headquarters Will Feature EFF Special Advisor Cory Doctorow, Nonprofit Defenders

Los Angeles—Electronic Frontier Foundation (EFF) activists will join advocates for other public interest nonprofits to protest a plan to sell out the Internet .ORG domain registry at a demonstration tomorrow outside ICANN’s board of directors meeting in Los Angeles.

EFF, nonprofit advocacy group NTEN, digital rights groups Fight for the Future and Demand Progress, and other nonprofits will participate in a rally to call on the Internet Corporation for Assigned Names and Numbers, or ICANN, to halt a transaction under which Ethos Capital, a private equity firm run by domain name industry insiders, will pay $1.135 billion to take over the lucrative .ORG registry, which collects fees for the use of the .org domain. ICANN has the power to stop the purchase. Organizations working in the public interest around the world in the arts, religion, culture, the environment, race, and poverty, will be affected by the sale.

“ICANN and its board are mostly invisible to the public and nonprofit world, but their power and influence over the health and well-being of public interest groups that serve the needs of hundreds of millions of people around the world cannot be overstated,” said EFF Special Advisor Cory Doctorow, who will speak at the rally. “The ICANN board needs to know that their actions are under scrutiny. They are out of touch with the people who both run and rely on .orgs around the world. ICANN should listen to the global nonprofit community and refuse to treat .ORG like a piece of real estate that can be sold to the highest bidder.”

Under the deal, ginned up with little disclosure, Ethos will acquire Public Interest Registry (PIR), itself a nonprofit that has for the past 17 years overseen the .ORG registry, and then change PIR into a for profit entity. The sale is opposed by 700 organizations, from the Girl Scouts of America and the League of Women Voters, to Farm Aid and Meals On Wheels.  21,000 individuals also signed in opposition, as have six members of Congress.

ICANN’s Board of Directors* is gathering in Los Angeles tomorrow for a regular meeting at which the .ORG sale is expected to be discussed; a final vote is due by February 17. The rally is being hosted by NTEN.

“.ORG needs a steward that will stand up for the nonprofit community in the face of pressure to raise prices, or to surveil or censor nonprofits,” said EFF Activism Director Elliot Harmon, who will speak at the rally. “The nonprofit community’s overwhelming concern about the announced sale shows that the community recognizes this for what it is: a blatant money grab by a private equity firm that will inevitably have to prioritize profits over the needs of nonprofits .”

“The ICANN board has the opportunity to take action here and demand that the .org domain ownership is controlled and decided through the appropriate, multi-stakeholder process, in keeping with ICANN’s policy-making practices,” said NTEN Chief Executive Officer Amy Sample Ward, also speaking at the demonstration. “A private billion dollar deal doesn’t meet that criteria.”

WHAT:
Save.ORG Rally and Demonstration

Speakers:
EFF Special Advisor Cory Doctorow
EFF Staff Attorney Cara Gagliano
EFF Activism Director Elliot Harmon
NTEN CEO Amy Sample Ward

Where:
ICANN
12025 E Waterfront Dr.
Playa Vista, CA 90094

When:
Friday, January 24
9 am – 11 am

*ICANN Board Member Sarah Deustch is a member of EFF’s Board of Directors.

 

Contact: 
Elliot
Harmon
Activism Director
Amy
Sample Ward
CEO, NTEN

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Author: Karen Gullo

Tale of Jailbreaking Disobedient IoT Appliances Shortlisted for the National Canada Reads Prize

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In Unauthorized Bread, a novella by EFF Special Advisor Cory Doctorow published in his 2019 Tor Books collection Radicalized, a refugee named Salima leads a mass jailbreaking of the locked-down Internet of Things appliances in a subsidized housing unit in Boston. With this act, Salima and others risk eviction, felony prosecution under Section 1201 of the Digital Millennium Copyright Act and deportation to the countries they fled in fear of their lives.

Radicalized has just been named a finalist in Canada Reads, the Canadian Broadcasting Corporation’s national book prize. In honor of the occasion, Ars Technica has published Unauthorized Bread in full.

Unauthorized Bread is also in development for TV by Topic, parent company of The Intercept, and is being adapted as a young adult graphic novel by Firstsecond, in collaboration with the comics creator Jennifer Doyle.

Doctorow returned to EFF in 2015 to fight Digital Rights Management, and helped with our suit to overturn the law that restricts removing or tampering with DRM. Unauthorized Bread and Radicalized represent another front in our battle for a free, fair and open tech world: using stories to make urgent but abstract policy questions real and vivid to broad audiences. Congratulations, Cory!

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Author: Rebecca Jeschke

EFF to Supreme Court: Criminal Immigration Statute Threatens Free Speech Online

EFF is urging the U.S. Supreme Court to strike down a law that poses a serious threat to online speech by criminalizing speech that “encourages” unlawful immigration. EFF filed an amicus brief on behalf of itself and Immigrants Rising, the Internet Archive, and Daphne Keller.

The case, United States v. Sineneng-Smith, questions whether 8 U.S.C. §  1324(a)(1)(A)(iv) (“the Encouragement Provision”)which makes it a felony to “encourage” an undocumented immigrant to enter or remain in the United Statesviolates the First Amendment. The accused, an immigration consultant charged under the Encouragement Provision, was convicted in the district court. However, the Ninth Circuit reversed her conviction, holding that the Encouragement Provision was facially unconstitutional. The court found that the statute was so overbroad that it would encompass speech ranging from “a loving grandmother who urges her grandson to overstay his visa” to a “post directed at undocumented individuals on social media” that encourages them to stay in the United States. As the court explained:

We do not think that any reasonable reading of the statute can exclude speech. To conclude otherwise, we would have to say that “encourage” does not mean encourage . . . At the very least, it is clear that the statute potentially criminalizes the simple words spoken to a son, a wife, a parent, a friend, a neighbor, a coworker, a student, a client “I encourage you to stay here.”

As our amicus brief explains, the Internet is full of protected speech that encourages immigrants to remain in the country, whether those immigrants are here lawfully or unlawfully. Social media users share posts that declare #HomeIsHere in support of undocumented youth. Services organizations direct immigrants to financial, educational, and health resources. Advocacy groups publish “know your rights” guides explaining that immigrants have the right to remain silent when questioned by immigration officers. Twitter, Reddit, and Facebook have each taken to their own platforms to express support for immigrants and oppose President Trump’s immigration policies.

All of this speech is exactly the kind of political advocacy that the First Amendment is designed to protect—but all of this speech may be criminalized under the Encouragement Provision.

And it is not only the speakers themselves who may be impacted by this law. Intermediaries may be chilled from even hosting this type of speech, for fear of risking criminal prosecution either as the publishers of the speech, or as aiders and abettors. Although federal law often protects online intermediaries from liability for users’ speech that the intermediaries host, intermediaries receive no immunity from federal criminal enforcement.

When faced with the risk that the speech they are transmitting may be illegal, intermediaries commonly choose to broadly restrict all speech about a topic rather than take on the impossible task of sifting through an enormous volume of user content to try to parse out the specific speech that’s prohibited. We’ve seen this exact dynamic play out before—most recently when Congress outlawed online advertisements for sex work and platforms responded with sweeping prohibitions on adult content far beyond what the law had banned.

The Encouragement Provision raises the specter that platforms seeking to minimize their own criminal exposure under the statute may censor all expression about immigration wholesale. Perhaps even more troublingly, platforms may remove all speech favoring an immigration policy based on principles of inclusion and decriminalization—because such expression is likeliest to violate the statute—while allowing speech favoring more restrictive and punitive immigration policies to remain online.

The Constitution protects our right to comment on and advocate for and against government policies. Immigration is one of the most hotly debated issues of our times, and the Supreme Court should strike down this dangerous and unlawful statute. 

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Author: Naomi Gilens

Speaking Freely: An Interview with Addie Wagenknecht

Addie Wagenknecht is an artist and researcher based between the U.S. and Europe. We met a few years back when she invited me to be part of Deep Lab, a “collaborative group of cyberfeminist researchers, artists, writers, engineers, and cultural producers” that she co-founded in 2014. We’ve shared the stage together twice at re:publica in Berlin, and I always enjoy having the chance to chat with her about art and free expression.

This conversation was no exception, as it journeyed from censorship in the art world to the restrictions social media place on profanities [ed. note: this interview contains a few of those] to the impact of conspiracy theories on our societies. As a successful artist, Addie brings an important perspective to this ongoing conversation about what free expression means.

Jillian C. York: Let’s get started. What does free expression mean to you?

I’m looking at it from the point of view of somebody who works in arts and culture; a lot of it has to do with how that’s translated within institutions and museums, commercial galleries, and the art world.

For me, it’s specifically about the right of expression creatively and being able to translate thoughts or political situations into things that can be shown in an open and public space, with the caveat that a lot of these spaces are donor and privately-run, so there are a lot of stipulations around what can be shown or how it can be shown.

York: Would you say that you identify as a defender of or advocate for free expression?

Yeah, I would say I definitely advocate for freedom of expression, freedom of speech, and the right to those freedoms both inside and outside the U.S.

York: Would you mind sharing a personal experience you’ve had with censorship or with utilizing your free expression for the common good?

I think the first thing that comes to mind is a project called Webcam Venus [ed. note: link contains nudity] which is about highbrow and lowbrow culture and what is considered art versus what is considered porn and how do you deviate and know the differences. It’s a piece where sexcam workers pose in traditional or classical pieces of well-known art, in an institutional sense. It’s taking paintings that are frequently cited within our history or the art canon, and recontextualizes those in a more contemporary means using webcams and sex performers.

That piece was installed a few times for more institutional museum shows but also for more commercially-sponsored events. It was shown at Internet week in New York City…I always think of New York as this kind of progressive place where you can do what you want, and it’s radical and open to new ideas. The piece was installed for this marketing or tech week in New York, and within five to ten minutes of the piece going up, someone came up to me and said they couldn’t show it, it had to be taken down immediately. So I asked why they wanted it taken down, and they said “Google is our sponsor, and they don’t want this up. It’s inappropriate, and it’s not something we want people seeing.” So they shut it down, they thought it was completely inappropriate to have in the context of this Internet culture week.

York: I do remember that, I think it came up in one of the talks we did together, but I didn’t know that part of the story.

It’s crazy, because I’ve always thought that imagery and pornography are what have driven so much of technology, and the advancement of wifi, and higher speeds, but then the fact that it’s completely siloed from the rest of the internet when you’re celebrating internet culture for me was a really disappointing thing, especially in New York, which I thought was so open to new ideas and discourse. It being shut down just popped that balloon for me.

York: That’s really wild. What was the impetus for that project? What inspired you to create it in the first place?

I was collaborating with Pablo Garcia, and our constraints were that we wanted to create a project together, but we were in different time zones—him at the Art Institute of Chicago, and me in Europe. Our constraints were that we were wanting to create a project across different time zones so we had to come up with a project that was ethereal in the sense that we didn’t need to create something physical.

I’d come across a talk at Transmediale in Berlin that year about the history of chatrooms or bullet boards that unfolded specifically through a queer lens, and it was interesting the way these speakers talked about the access to webcam performers and that specific site really intrigued me because when they were going through the history of bulletin boards and IRC, one of the panelists brought up this interesting site that was read/write in terms of porn. You have access to the cam performers as well as the chat or input and what they’re willing to do can be communicated in both ways. He had presented it in the context of this panel and I started to research more about that. I always liked Chat Roulette, where you go on and it’s different webcams shuffled with other people all over the world. I was already interested in this sort of randomness and accessibility through the web, and finding ways to do that with spaces of the web.

With art, sexuality is still a topic that is highly refined in terms of institutions, so I thought that was an interesting space to explore. I presented that idea to Pablo, I sent him the link to the talk I’d seen, and we kind of just fell into that. A lot of his work looks at art and architecture from an historical perspective, so somehow within the collaboration we came up with this idea of how you recontextualize historical work that is defined as art through texts, academics and institutions, and recreating that through a contemporary lens, and what does that look like? Is it still art even though it references the prior works but in a more contemporary medium?

York: That’s really interesting. In fact, one of the interesting things to me is how platforms censor nudity when it’s in a more modern format.

Right, right.

York: Okay, so here’s a different question. Do you have a free speech hero?

I don’t know that I do. In the past few years, the Internet and political climate have changed so much and people have gone in different directions. But one of my longstanding activism heroes were always the Guerrilla Girls. I think they started in the ‘80s, and they’re these women who are decently high-profile in the arts, but they go around wearing gorilla masks and do a lot of stuff within anonymity, giving themselves the power of that anonymity to advocate for free speech and against inequality within institutions and other things people aren’t willing to talk about publicly.

York: I’ve always found their work really interesting. Okay, changing topics a little: let’s talk about social media. What concerns you at the moment?

That conspiracy theories are becoming mainstream. Ten years ago, scientific consensus was considered factual for example, but that has been completely dismissed by those in power. Somehow we have reached a point where not wanting the world to burn is being considered ‘politically radical’.

See, our communities online and off, depend on shared truths and if you think about it, what the Internet—and the social media spaces that so many of us rely on daily—have created is a sense of identity by over-inflating the value of our opinions while equally maximizing the sense of opposition, all while simultaneously destroying the sense of personal impact on just about anything. We are so totally unaware of our own confirmation biases on these platforms because everything can appear equally legitimate. Our personal lives are quite literally monetized and becoming public domain but more than that, I am afraid people have lost the ability to parse facts, and our democracy and freedoms—of speech, of art and expression—literally depend on that.

Companies like Facebook will not change because their entire profit model relies on clicks, and nothing generates those like lies, conspiracy theories and declarations of victim-hood by some of the most powerful and privileged men in the world. If social media companies were held to the same basic standards of print, movies or TV perhaps this could alleviate some of these issues.

If for example, Facebook had to fact-check ads before running them, they could prevent the micro-targeting and disseminating of lies and ‘fake news’ before it starts but as of now they do not—instead they actually help you target your audiences instead for maximum audience engagement and views, further spreading and encouraging disinformation on a massive scale.

York: So do you think that any online speech should be regulated, and if so, how?

I’m very much an advocate for freedom of expression/speech and the right to express those things, unfortunately for people living outside of the U.S. they’re not protected by the constitutional right to that, so how that’s protected would require some sort of protections for people who exist outside of the U.S., because they don’t necessarily have those rights.

I’m also kind of on the team of anti-regulation and anti-censorship. I want to think that those things can be self-regulated within communities and within spaces both online and off. So, I don’t necessarily believe that [speech] needs to be regulated. I don’t think the way it’s being regulated right now, through having companies like Facebook, having people who are trained in various countries with different social and cultural norms censoring content is necessarily the way to go. I do find the flagging process, where for example content is hidden with a warning, useful. I’ve noticed a few sites have started to do this, like Twitter and YouTube when something gets enough downvotes—you can choose to either click it or not.

York: Yes. Twitter’s is really interesting though, because it seems to be based on a list of keywords. “Vagina,” for example, seems to be included as an “offensive” term, and I find that so strange.

Yeah, I mean, it’s interesting to me that “dick” or “vagina” or those sorts of words are deemed offensive, but then you could say something really hateful about someone, like using radical slurs, and those would be tolerated, but then anatomy isn’t. How you differentiate those things is the golden ticket in terms of solving some of those things. How do you allow for freedom of expression without censoring those things? If you could figure those things out,I think you’d have a really viable social media platform.

I think it’s interesting that Jordan Peterson is starting this anti-censorship bulletin board sort of thing. I’m really interested in how that’s going to transpose with his new fanbase. I heard they’re not going to censor anything or limit who has access to it. I’m kind of interested to see if it becomes another 4chan or 8chan sort of thing or if it becomes a space for viable discourse.

York: I’m sort of curious about that too. What you said about the golden ticket—I don’t really see anyone working that hard to make that possible. What’s really difficult is that there really isn’t yet an AI that can detect that sort of thing. If someone says “women are inferior to men,” there’s currently no way that AI detects that as a hateful statement, whereas it’s easy to plug in words that people find offensive. So words like “fuck” are really interesting in this context.

Yes—words like “fuck” or “shit” or “bitch” have this duality depending on how they’re contextualized within the language. And then it comes back to “who wrote the AI?” because the AI obviously has bias depending on how it was written, or who wrote it.

To some extent, I think people think of code and science and math as inherently neutral, but in fact it’s kind of embedded in the biases of those who write it. But if you write a computer vision program…for example, have you seen this gif on Twitter that says “why computer vision isn’t neutral” and shows a white hand going under a soap dispenser and the soap comes out, but then a black hand goes under it and the dispenser can’t detect it.

York: Wow, that’s just so blatant.

I think about it a lot because we have so much trust in these technologies and these larger systems and corporations that build them. Maybe that’s changed on a social scale, and people are beginning to realize that there’s this kind of implicit biases built into these system, and so looking at who’s building them and what’s being built is so interesting. And that’s why I think what Kate Crawford and Meredith Whitaker are doing at AI Now is so interesting.

York: Okay, let’s see…is there anything I’ve missed?

I definitely find that there’s something interesting about the implications to people who choose to be outspoken outside the norm of the art world. I recently had a show that was supposed to happen in a large city, but the space didn’t want it because they said it was too political, and they were really advocating that political stuff doesn’t sell, and that people don’t want to see it. As an artist, there’s this weird kind of conundrum—and probably for people who do free speech work as well—if you choose to do political work or you choose to speak out, there are implications to your professional well-being, your income, your sales, and all these things that determine your livelihood in some sense. So a lot of artists and curators I know, when I talk to them off the record, they’re very adamant about not showing opinions that could be seen as political, advocacy, free speech work because they don’t want to be deemed radical.

Recently, there’s been a lot of upheaval with artists, like those not showing at the Whitney Biannual because of the affiliation with the families who created Oxycontin. So there’s some awareness now about the financial pipeline and what we’re implicit in supporting by showing work that they want or are comfortable with.

York: Do you see any parallels between the art institutions and Silicon Valley?

Yeah, they’re typically run by the exact same sort of people—white people who are extremely privileged. I’d have to look it up, but the Guerilla Girls are a good resource for this. They made something that showed [the percentages of the art world that are white, female, or people of color] and if you consider that as what is forming the art canon as well as Silicon Valley’s canon, I’d say it’s pretty similar in terms of venture funding and startup culture [editor’s note: The Guerrilla Girls have also done work on the racial composition of internet users].

That’s what’s writing the history. So it’s like, there’s an entire majority of society that’s not being considered into the contemporary story, but also the historical one, and those of course inform the future. Looking at who has the right of access, who has the privilege of access, and who has the right to show their work…there’s definitely a parallel for me.

York: Thank you so much, Addie, this has been fascinating.

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Author: Jillian C. York

In Serving Big Company Interests, Copyright Is in Crisis

We’re taking part in Copyright Week, a series of actions and discussions supporting key principles that should guide copyright policy. Every day this week, various groups are taking on different elements of copyright law and policy, addressing what’s at stake and what we need to do to make sure that copyright promotes creativity and innovation.

Copyright rules are made with the needs of the entertainment industry in mind, designed to provide the legal framework for creators, investors, distributors, production houses, and other parts of the industry to navigate their disputes and assert their interests.

A good copyright policy would be one that encouraged diverse forms of expression from diverse creators who were fairly compensated for their role in a profitable industry. But copyright has signally failed to accomplish this end, largely because of the role it plays in the monopolization of the entertainment industry (and, in the digital era, every industry where copyrighted software plays a role). Copyright’s primary approach is to give creators monopolies over their works, in the hopes that they can use these as leverage in overmatched battles with corporate interests. But monopolies have a tendency to accumulate, piling up in the vaults of big companies, who use these government-backed exclusive rights to dominate the industry so that anyone hoping to enter it must first surrender their little monopolies to the hoards of the big gatekeepers.

Creators get a raw deal in a concentrated marketplace, selling their work into a buyer’s market. Giving them more monopolies – longer copyright terms, copyright over the “feel” of music, copyright over samples – just gives the industry more monopolies to confiscate in one-sided negotiations and add to their arsenals. Expecting more copyright to help artists beat a concentrated industry is like expecting more lunch money to help your kid defeat the bullies who beat him up on the playground every day. No matter how much lunch money you give that kid, all you’ll ever do is make the bullies richer.

One of the biggest problems with copyright in the digital era is that we expect people who aren’t in the entertainment industry to understand and abide by its rules: it’s no more realistic to expect a casual reader to understand and abide by a long, technical copyright license in order to enjoy a novel than it is to expect a parent to understand securities law before they pay their kid’s allowance. Copyright law can either be technical and nuanced enough to serve as a rulebook for a vast, complex industry…or it can be simple and intuitive enough for that industry’s customers to grasp and follow without years of specialized training. Decades of trying to make copyright into a system for both industrial actors and their audiences has demonstrated that the result is always a system that serves the former while bewildering and confounding the latter.

But even considered as a rulebook for the entertainment industry, copyright is in crisis. A system that is often promoted as protecting the interests of artists has increasingly sidelined creators’ interests even as big media companies merge with one another, and with other kinds of companies (like ISPs) to form vertical monopolies that lock up the production, distribution and commercialization of creative work, leaving creators selling their work into a buyer’s market locked up by a handful of companies.

2019 was not a good year for competition in the entertainment sector. Mergers like the $71.3B Disney-Fox deal reduced the number of big movie studios from five (already a farcical number) to four (impossibly, even worse). The Hollywood screenwriters have been locked in a record-breaking strike with the talent agencies—there are only three major agencies, all dominated by private equity investors, and the lack of competition means that they increasingly are negotiating deals on behalf of writers in which they agree to accept less money for writers in exchange for large fees for themselves.

On top of that, the big entertainment companies are increasingly diversifying and becoming distribution channels. The Trump administration approved the AT&T/Time-Warner merger just as the Obama administration approved the Universal/Comcast merger a decade earlier. Meanwhile, Disney has launched a streaming service and is pulling the catalogs of all its subsidiaries from rival services. That means that the creators behind those works will no longer receive residual payments from Disney for the licensing fees it receives from the likes of Netflix—instead, their work will stream exclusively on Disney Plus, and Disney will no longer have to pay the creators any more money for the use of their work.

To top it all off, the DOJ is working to end the antitrust rule that bans movie studios from owning movie theater chains, 70 years after it was put in place to end a suite of nakedly anti-competitive tactics that had especially grave consequences for actors and other creative people in the film industry. Right on cue, the already massively concentrated movie theater industry got even more concentrated.

The most visible impact of the steady concentration of the entertainment industry is on big stars: think of Taylor Swift’s battle to perform her own music at an awards show where she was being named “Artist of the Decade” shortly after rights to her back catalog were sold to a “tycoon” whom she has a longstanding feud with.

But perhaps the most important impact is on independent creators, those who either cannot or will not join forces with the entertainment giants. These artists, more than any other, depend on a free, fair and open Internet to connect with audiences, promoted and distribute their works and receive payments. The tech sector has undergone market concentration that makes it every bit as troubled as the entertainment industry: as the New Zealand technologist Tom Eastman wrote in 2018, “I’m old enough to remember when the Internet wasn’t a group of five websites, each consisting of screenshots of text from the other four.”

The monopolization of the online world means that all artists are vulnerable to changes in Big Tech policy, which can see their livings confiscated, their artistic works disappeared, and their online presences erased due to error, caprice, or as collateral damage in other fights. Here, too, independent artists are especially vulnerable: when YouTube’s Content ID copyright filter incorrectly blocks a video from a major studio or label, executives at the company can get prompt action from Google — but when an independent artist is incorrectly labeled a pirate, their only hope of getting their work sprung from content jail is to make a huge public stink and hope it’s enough to shame a tech giant into action.

As online platforms become ever-more-central to our employment, family, culture, education, romance and personal lives, the tech giants are increasingly wielding the censor’s pen to strike out our words and images and sounds and videos in the name of public safety, copyright enforcement, and a host of other rubrics. Even considering that it’s impossible to do a good job of this at massive scale, the tech companies do a particularly bad job.

This is about to get much worse. In March 2019, the European Union passed the most controversial copyright rules in its history by a razor-thin margin of only five votes—and later, ten Members of the European Parliament stated that they were confused and had pressed the wrong button, though the damage had already been done.

One of the most controversial parts of the new European Copyright Directive was Article 17 (formerly Article 13), which will require all online platforms to implement copyright filters similar to Google’s Content ID. The Directive does not contain punishments for those who falsely claim copyright over works that don’t belong to them (this is a major problem today, with fraudsters using fake copyright claims to threaten the livelihoods of creators in order to extort money from working artists).

Article 17 represents a bonanza for crooks who victimize creators by claiming copyright over their works—without offering any protections for the artists targeted by scammers. Artists who are under the protective wing of big entertainment companies can probably shield themselves from harm, meaning that the heavily concentrated entertainment sector will have even more leverage to use in its dealings with creators.

But that’s not all: Article 17 may have snuffed out any possibility of launching a competing platform to discipline the Big Tech firms, at least in Europe. Startups might be able to offer a better product and lure customers to it (especially with the help of Adversarial Interoperability) but they won’t be able to afford the massive capital expenditures needed to develop and operate the filters required by Article 17 until they’ve grown to giant size—something they won’t get a chance to do because, without filters, they won’t be able to operate at all.

That means that the Big Tech giants will likely get bigger, and, where possible, they will use their control over access to markets and customers to force both independent creators and big media companies to sell on terms that benefit them, at the expense of creators and entertainment companies.

To see what this looks like, just consider Amazon, especially its Audible division, which controls virtually the entire audiobook market. Once a minor sideline for publishing, audiobooks are now a major component of any author’s living, generating nearly as much revenue as hardcovers and growing much faster.

Amazon has abused its near-total dominance over the audiobook market to force creators and publishers to consent to its terms, which include an absolute requirement that all audiobooks sold on Audible be wrapped in Amazon’s proprietary “Digital Rights Management” code. This code nominally protects Audible products from unauthorized duplication, but this is a mere pretense.

It’s pretty straightforward to remove this DRM, but providing tools to do so is a potential felony under Section 1201 of the Digital Millennium Copyright Act, carrying a penalty of a five-year prison sentence and a $500,000 fine for a first offense (EFF is suing the US government to overturn this law). This means that potential Audible rivals can’t offer tools to import Audible purchases to run on their systems or to permit access to all your audiobooks from a single menu.

As Amazon grows in scale and ambition, it can, at its discretion, terminate authors’ or publishers’ access to the audience it controls (something the company has done before). Audiences that object to this will be left with a difficult choice: abandon the purchases they’ve made to follow the artists they love to smaller, peripheral platforms, or fragment their expensive audiobook libraries across a confusion of apps and screens. 

Copyright was historically called “the author’s monopoly,” but increasingly those small-scale monopolies are being expropriated by giant corporations—some tech, some entertainment, some a weird chimera of both—and wielded to corner entire markets or sectors. In 2017, EFF lost a long, bitter fight to ensure that a poorly considered project to add DRM to the standards for Web browsers didn’t result in further monopolization of the browser market. Two years later, our worst fears have been realized and it is effectively impossible to launch a competitive browser without permission from Google or Microsoft or Apple (Apple won’t answer licensing queries, Microsoft wants $10,000 just to consider a licensing application, and Google has turned down all requests to license for new free/open-source browsers).

Copyright has also become a key weapon in the anticompetitive arsenal wielded against the independent repair sector. More than 20 state-level Right to Repair bills have been killed by industry coalitions who cite a self-serving, incoherent mix of concerns over their copyrights and “cybersecurity” as reasons why you shouldn’t be able to get your phone or car fixed in the shop of your choice.

All this is why EFF expanded its competition-related projects in 2019 and will do even more in 2020. We, too, are old enough to remember when the Internet wasn’t a group of five websites, each consisting of screenshots of text from the other four. We know that, in 2020, it’s foolish to expect tech companies to have their users’ back unless there’s a meaningful chance those users will go somewhere else (and not just to another division of the same tech company).

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Author: Cory Doctorow