Tag Archive for: reform

California Cities Voting On Ridiculous Resolution Asking Congress For Section 230 Reform… Because Of Violence At Protests?

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I attended an Internet Archive event (virtually, of course) yesterday, and afterwards one of the attendees alerted me to yet another nefarious attack on Section 230 based on out-and-out lies. Apparently the League of California Cities has been going around getting various California cities to vote on a completely misleading and bogus motion pushing for Congress to reform Section 230 of the Communications Decency Act. It was apparently put up first by the city of Cerritos, which is part of Los Angeles County (almost surprised it wasn’t started in Hollywood, but it wouldn’t surprise me to find out that the impetus behind it was Hollywood people…). Basically, cities are voting on whether or not the League of California Cities should officially call on Congress to amend Section 230 in drastic ways… all because of some violence at recent protests about police brutality. The process, apparently, is that one city (in this case Cerritos) makes the proposal, and gets a bunch of other cities to first sign on, and then various other cities take a vote as to whether it becomes official League policy (after which they’d send a letter to Congress, which Congress would probably ignore).

And, if you just read the nonsense that the originating proposal put out there, and had no idea how Section 230, the internet, the 1st Amendment or the 4th Amendment works, it might sound like a good idea. Except that what the proposal says is utter nonsense, disconnected from reality.

This resolution states that the League of California Cities should urge Congress to amend Section 230 of the federal Communications Decency Act of 1996 (CDA) to limit the immunity provided to online platforms where their forums enable criminal activity to be promoted.

Ultimately, the policy objectives proposed under this resolution, if enacted, would incentivize social media companies to establish and implement a reasonable program to identify and remove content that solicits criminal activity.

Except that Section 230 already says there’s no immunity for platforms if they enable federal criminal activity. So this is a made up concern. Second, if you changed 230 in the manner they want, they’re simply wrong that it “would incentivize social media companies to establish and implement a reasonable program to identify and remove content that solicits criminal activity.” Because every major social media platform already has such a program. The problem is not that they don’t have incentives. The problem is that not everyone will ever agree on what the “right” moderation is.

Incredibly, the proposal handwaves away the idea that putting more liability on internet websites might lead to more censorship:

While there is certainly an argument to substantiate concerns around censorship, the use of social media as a tool for organizing violence is equally disturbing.

Tomato, tomahto.

Also, the proposal seems to blame violence that broke out at various protests this summer… on social media, claiming that’s why 230 must change.

Although the majority of protests were peaceful, some demonstrations in cities escalated into riots, looting, and street skirmishes with police. While much of the nation’s focus has been on addressing police misconduct, police brutality, and systemic racism, some have used demonstrators’ peaceful protests on these topics as opportunities to loot and/or vandalize businesses, almost exclusively under the guise of the “Black Lives Matter” movement. It has been uncovered that these “flash robs” were coordinated through the use of social media. The spontaneity and speed of the attacks enabled by social media make it challenging for the police to stop these criminal events as they are occurring, let alone prevent them from commencing altogether.

As these events started occurring across the country, investigators quickly began combing through Facebook, Twitter, and Instagram seeking to identify potentially violent extremists, looters, and vandals and finding ways to charge them after — and in some cases before — they sow chaos. While this technique has alarmed civil liberties advocates, who argue the strategy could negatively impact online speech, law enforcement officials claim it aligns with investigation strategies employed in the past.

So, let me get this straight. First, we should blame social media — and not police brutality and militarization — for the cases where violence has broken out at a few protests. And the way to deal with violence organized on social media is to… hold the social media platforms liable rather than those that engaged in or encouraged the violence? Are these people for real?

Also, the full proposal goes way beyond what is described regarding violence at protests. This is what it says:

  1. Online platforms must establish and implement a reasonable program to identify and take down content which solicits criminal activity; and
  2. Online platforms must provide to law enforcement information which will assist in the identification and apprehension of persons who use the services of the platform to solicit and to engage in criminal activity; and
  3. An online platform that willfully or negligently fails in either of these duties is not immune from enforcement of state and local laws which impose criminal or civil liability for such failure.

That would be a massive and problematic change to Section 230. First, as it stands, websites already have tremendous incentive to identify and take down content which solicits criminal activity — and many of them try to do exactly that. Changing 230 will not change that — but will lead to fewer places for people to communicate and put tremendous limits on the ability to speak freely online.

The second prong has nothing to do with Section 230 and raises significant 4th Amendment concerns about when a website should have to hand over private information on someone without any warrant or judicial review. That should be frightening to everyone.

This entire proposal is horrifically authoritarian, and is questionable on both 1st and 4th Amendment grounds, but a bunch of cities are signing onto it because the proposal is extremely misleading about how the internet works, how Section 230 works, and what this all means. While I’m not sure that Congress really gives a shit what the League of California Cities has to say about Section 230, it’s yet another way in which people from all over the place are attacking the law that made the internet, because they’re mad that people they don’t like are doing stuff they don’t like.

Thankfully, at least one California city has rejected the proposal. Last night the city of Hayward rejected the proposal, despite it getting support from the local police chief and the city attorney who, I’m told, used the totally bogus “fire in a crowded theater” line, suggesting that was the law of the land (it’s not) and other wrong and misleading cliches, including “freedom of speech isn’t free.” Thankfully, some on the city council (and the mayor) seemed to recognize that this was a dangerous, half-baked proposal and voted it down. I hope other cities do the same.

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Virginia Prosecutor ‘Reform’ Efforts Include Nailing Sexting Teens With Child Porn Charges And Screwing Defense Lawyers

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Virginia has a mixed history when it comes to handling teens and sexting. For the most part, these cases have been handled with maximum vindictiveness, resulting in teens being charged with child porn production and possession. In rare cases, prosecutors have exercised more discretion, allowing these experiences to be educational rather than punitive. But default mode is still to use the law like a weapon, rather than a tool, as if justice were somehow achieved by ruining teens’ lives forever for some stupid indiscretions.

A parent’s firsthand experience with this has resulted in him calling out Theo Stamos, Arlington County Commonwealth’s Attorney, for her attempt to portray herself as a reformer in her run for reelection. Jeff Edmeades’ son was railroaded by Stamos for possessing intimate photos of a teen sent to him by fellow students. Exercising her vaunted discretion, Stamos decided to force his son into a plea bargain by hitting him with the harshest charges she could.

As she does in adult cases it seems, she essentially forced a plea deal by threatening to charge him with the maximum possible charges – one felony for possession of child pornography per image. That took defending him in court off the table

The resulting plea agreement was far from ideal. His son was sentenced to supervised probation and does not have the option to have his record expunged after he’s done his time. Edmeades’ letter to the editor points out it’s actions like these that undermine Stamos’ claims that she is fixing a broken justice system from the inside.

In many places, these issues are left to the parents and/or schools to resolve. Notwithstanding this recommendation, Stamos has, on multiple occasions, chosen to prosecute these cases – not because she had to, but rather because she chose to.

Once we were in the juvenile-justice system, which is in theory oriented towards education and rehabilitation rather than punishment, we found that Stamos was very comfortable using the full power of the legal system and the ambiguity around the law in this case to pressure us into accepting a plea deal.

If this is how Ms. Stamos treats children, is it any wonder that she uses the legal system as a blunt-force instrument of punishment with adults? She can say whatever she wants about how her goal is to improve communities and be fair, but her actions speak louder than her words.

It’s not just the opinion of a parent who saw his son treated like a child pornographer for possessing photos of someone roughly his own age. It’s also the state’s defense lawyers, who have witnessed Stamos interpret “discretion” the same way she did in Edmeades’ case: maximum charges brought to ensure a steady flow of plea deals. Their letter says Stamos’ tactics make a mockery of a process that is supposed to recognize defendants’ right to a fair trial.

We are concerned that nearly 98% of felony convictions in Arlington are the result of the defendant pleading guilty, exceeding the rate in all local jurisdictions (Alexandria: 91%; Fairfax/Loudoun: 93%) and even in the federal courts (97%). We are concerned that the low incidence of trials in Arlington is mainly due to overcharging and the fear of harsh consequences if a defendant does not accept a plea bargain.

We are concerned that Arlington convicts defendants of felonies at more than twice the rate of neighboring jurisdictions, despite its very low crime rate. We are worried that this reflects a culture of overcriminalization.

That’s only one of the ways Stamos puts her finger on the scales of justice. The letter also notes she’s hampering defense efforts by making it as difficult as possible to obtain documents via discovery.

We are concerned that the Arlington County Commonwealth’s Attorney’s discovery policy, which prohibits the use of technology to obtain copies of police reports and other documents, places unique and arbitrary restrictions on the discovery process, making it needlessly difficult for defense attorneys to be prepared for trial. We believe that real open file discovery would make the process more fair for defendants and make the criminal process much more reliable and efficient.

Currently, defense lawyers must head to the court during courtroom hours and manually copy files handed over during discovery. Stamos claims this process protects the privacy of crime victims, but it’s difficult to believe details about crime victims are somehow more protected by a process that pretends it’s not actually 2019.

Theo Stamos is the only one who believes these are the practices of a criminal justice system reformer. It starts with screwing teens who made mistakes and ends with screwing their lawyers when they try to mount a defense against these trumped-up charges.

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Canadian Committee Publishes Ludicrous Fantasy Pretending To Be Copyright Reform Analysis

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Oh Canada. Not satisfied with a ridiculous plan to fine social media companies for ill-defined “fake news,” a Canadian Parliamentary Committee has come out with one of the most laughable copyright reform papers I’ve ever seen. And I’ve seen some crazy ones. I’d post the whole report here, but the report itself warns that doing so might violate its copyright, and really, how could the Parliament be incentivized to create fantasy stories masquerading as copyright reform proposals without copyright?

Michael Geist provides the bizarre background on the origination of this report:

The Canadian government announced its plans for a copyright review in December 2017, tasking the Standing Committee on Industry, Science and Technology with the review. That report has been in the drafting stage for several months and is expected before the summer. In an effort to dampen concerns that Canadian Heritage would play a diminished role in the review, the responsible ministers asked the Industry committee to ask the Heritage committee to conduct a review on remuneration models for artists and creative industries. The formal request asked the Standing Committee on Canadian Heritage to “call upon the expertise of a broad range of stakeholders impacted by copyright to ensure a holistic understanding of the issues at play.”

Rather than providing the recommendations directly to the Industry committee as requested, the Heritage committee and chair Julie Dabrusin, a Liberal MP, chose instead to release its full report today. The report, which utterly failed to comply with the request to call on a broad range of stakeholders, is the most one-sided Canadian copyright report issued in the past 15 years, largely mirroring the approach of the discredited 2004 Bulte report that was subsequently rejected by the government.

The report is crazier than even I expected upon hearing the details. It doesn’t even pretend that there might be some downsides to over-extending copyright law, or that there should be any exploration of the trade offs of various proposals at all. Instead, it insists that we NEED MORE COPYRIGHT in basically every possible place. As if to prove how laughable the entire report is… it actually recommends extending copyright terms — something that even American copyright maximalists have mostly given up on (and whom, in quiet, will admit that perhaps copyright terms are already too long). But, that view is not even suggested in Dabrusin’s dubious analysis of copyright. Indeed, the report admits that it didn’t talk to a single person who didn’t think extending copyright was a grand idea:

No witnesses expressed outright opposition to extending of the copyright term from 50 to 70 years after death.

If that’s the case, you, uh, did not speak to very many witnesses at all — and you certainly did not abide by your mandate to talk with a “broad range of stakeholders.” Incredibly, the report quotes a musician — uncritically — who is flat out admitting that she just wants more money for work she did in the past:

Artist Miranda Mulholland said that extending the copyright term would be a “legacy move” that would give artists like herself “the ability to leverage their success.”

Existing copyright law in Canada allows Mulholland and her heirs to “leverage her success” for 50 years past her death. And she wants more? Come on. And, remember, copyright is supposed to be about an incentive to create. If life+50 was good enough for her to create when she did, why should she get extra benefits (by taking away from the public domain) afterwards? That makes no sense at all. But the report reflects none of that.

The report is also laughably credulous about the debunked concept of the “value gap”, which is a meaningless phrase invented by the legacy record labels to mean “internet companies figured out how to innovate, while we just sued our best customers, and why aren’t they handing us more money?!?” But, according to this report, it’s a real problem that absolutely must be dealt with:

Witnesses from the creative industries spoke about a disparity between the value of creative content enjoyed by consumers and the revenues that are received by artists and creative industries. According to many witnesses, this disparity, which is known as the “value gap,” is growing.

According to Graham Henderson, President and Chief Executive Officer of Music Canada, the origins of the value gap extend back more than two decades. As creative industries shifted with the advent of the internet, copyright policy and protections became outdated and ineffective. Miranda Mulholland, artist and entrepreneur, aptly described, “the biggest reason for [the value gap] is that the laws in place today reflect a time of home phones, of scrunchies, and of buying a CD at a music store instead of today’s world of streaming.”

That’s silly. Canada went through major copyright reform in 2012. The idea that the laws reflect the 1980s is just silly. And wrong. So is the idea of a value gap.

The report falsely claims that there has been a “decline in the artistic middle class.” This is absolutely laughable. As we showed in our recent Sky Is Rising report, the internet has enabled a massive new artistic middle class by allowing them to go direct to fans, and not rely on a single gatekeeper. Instead, there are lots of tools to create, to reach new fans, and to make money — and all of the data suggests that’s happening. What’s telling is that nowhere in the report do they cite any actual statistics around this, but merely anecdotes. It’s incredible.

The entire report is based solely on anecdotes and quotes from legacy industry insiders, who might have just a wee bit of bias in telling the Canadian government that it needs to force internet companies to pay more. Not surprisingly, this report endorses the approach the EU has taken with its new copyright laws: put all the liability on the platforms. Again, there isn’t even an attempt to show why this might create problems or trade-offs — just quotes in support:

Another approach to combatting piracy that witnesses raised is to involve the intermediaries in content distribution such as Internet service providers (ISPs). Witnesses described different methods to do so. For the Association nationale des editeurs de livres, ISPs ought to “inform their subscribers about copyright” and “[withdraw] access from non-compliers.” For representatives from the music and the film and television industries, the courts ought to be allowed to force ISPs to block access to the websites that allow piracy.

To further curb illegal copying or streaming, it was suggested profiting from the theft and sharing of rights holders’ exclusive and copyrighted content on illegal streaming services be deemed a criminal offence.

Many witnesses also asked for modifications to the safe harbour provisions related to digital intermediaries and ISPs. The Committee heard that these provisions ought to be reviewed to ensure that these online services are held accountable for their role in diffusing content. The recommendation is linked to the theme of Canadian content previously discussed. Witnesses told the Committee that the Internet should not be seen as a set of “dumb pipes” and, rather, that ISPs “enjoy and greatly benefit from access to the music they give their clients.”

The whole report is an utter joke. It seems clear that it was written by someone who not only heard from one tiny set of views, but who is either woefully ignorant of the myriad views on copyright and its impact, or who purposefully tried to hide that. Either way, it makes this report not worthy of consideration by any legitimate legislative body.

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New Organization Formed In South Africa To Promote The Rights Of Creators And Support Intelligent Copyright Reform

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Over the years, Techdirt has written about some pretty bad stuff happening in South Africa on the copyright front. For example, there was the Business Software Alliance using made-up figures in an attempt to revise copyright law in its favor. The South African music rights organization tried to put public domain works under copyright. And — most insane of all — the South African recording industry association ran a stupid “anti-piracy” campaign called “Shoot the Pirate”, which resulted in actual violence. So it makes a pleasant change to report on some good news from the country. A new organization of creators has been formed to press for a more balanced copyright system in South Africa. They call themselves ReCreate, although apparently the group has no connection with the similar US organization Re:Create. Here are the South African ReCreate’s basic principles:

ReCreate exists to promote the interests of South African creatives with regards to copyright legislation.

As much as we are creators, we are users of existing cultural products. Currently our work can be blocked through censorship by those who claim to own our culture. Moreover we often do not not own the work we create. And many of us have been disadvantaged by an exploitative system which fails to pay us for our work.

Growing the digital economy requires innovation. South Africa is at a disadvantage to other countries with flexible copyright laws that support creativity.

We call on Government to include in the ongoing copyright reform three key issues to enable us to create the next generation of South African content for the world.

An update about the South African copyright reform currently underway can be found on the infojustice.org site. There’s also an opinion piece in South Africa’s Mail & Guardian written by some of ReCreate’s founders, in which they explain some of the problems they face under current copyright legislation, and the fair use rights they need to help them produce new works in the digital world:

Parody and satire

Incidental use of background content

Use of works in public places

Digital archival

Creation of educational works

Non expressives uses on the Internet, including indexing, data mining and search

Re-mixing, transforming and re-interpreting

Creation of accessible copies for people with disabilities

Adaptation to future technology

However, according to another post on infojustice.org, the South African Department of Arts and Culture has come out against introducing fair use, claiming:

Fair use by its nature is open-ended and it creates uncertainties in the management of rights. If adopted, this model will permit uncontrollable and unreasonable access to copyright materials resulting into reduction of real income for copyright owners.

Although it’s disappointing to see this kind of tired old FUD being spread, it’s great to see artists standing up for themselves like this in South Africa. For too long, the copyright companies have claimed to represents artists while doing precious little to help them create new works or earn a decent living. The founding of ReCreate is a hopeful sign that things may be about to change.

Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+

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