Techdirt. Stories filed under "intermediaries"

Georgia State Court Issues Censorship Order Blocking Free Speech On Anti-Copyright Troll Message Board

Mike Masnick — Wed, 27 Mar 2013 07:58:49 PDT

The EFF has a blog post about a very troubling ruling in a Georgia state court that effectively orders the censoring of an anti-copyright trolling blog including user comments. The blog in question, ExtortionLetterInfo.com, is run by a guy named Matt Chan. He recently took up the cause of people who have been hit by copyright infringement demands from Linda Ellis, a poet who is somewhat infamous for going after lots of people, demanding payments after they posted her sappy poem "the Dash." She apparently threatens people (ridiculously) with the statutory maximum awards of $150,000 per infringement, but will "settle" for a mere $7,500 -- often going after non-profits, charities and churches who want to share the "positive message" of the poem. Yes, she demands $7,500 for posting her poem to a website.

Her actions have been written about and talked about in a wide variety of places online, and when ELI took up the issue, some of the comments got nasty. And apparently, some of the comments made on the ELI site did get pretty aggressive, which is unfortunate. As much as people dislike trolling behavior, there's simply no reason to ever go that far. However, even if the posts went too far, the judge went much further in ordering Chan to remove all mention of Ellis from his site, whether by him or any user.

Respondent is hereby ORDERED to remove all posts relating to Ms. Ellis. Respondent is hereby enjoined and restrained from doing or attempting to do, or threatening to do any act constituting a violation of O.C.G.A- §§ 16-5-90 et seq. and of harassing, interfering, or intimidating the Petitioner or Petitioner's immediate family. Any future acts committed by the Respondent towards the Petitioner which are in violation of this statute and this Protective Order can amount to AGGRAVATED STALKING, pursuant to O.C.G.A. § 16-5-91, which is a felony. A person convicted of Aggravated Stalking shall be punished by imprisonment for not less than one nor more than ten years and by a fine of not more than $10,000.00

As the EFF points out, this order goes way, way too far by violating a variety of existing laws and the First Amendment.

Removing "all posts relating to Ms. Ellis" is neither narrowly tailored nor the least restrictive means of addressing any true threats. It fails the First Amendment test because of the collateral damage: it will take down constitutionally-protected criticism of the copyright troll and her demands for money. For example, Ellis complained that "there were vile posts of blasphemy." While blasphemy is doubtless offensive to Ellis, it remains protected speech.

The Georgia Court's overreaching order against Chan also contradicts federal law because it holds a service provider to account for users' posts. Section 230 protects websites that host content posted by users, providing immunity for a website from state law claims (including criminal law) based on the publication of "information provided by another information content provider."

The court, incorrectly, insists that because Chan has the ability to remove posts, he is obligated to do so.

As the owner and operator of the site, Respondent has the ability to remove posts in his capacity as the moderator. However, Respondent chose not to remove posts that were personally directed at Ms. Ellis and would cause a reasonable person to fear for her safety. Because the Respondent's course of conduct was directed at Ms. Ellis through the posted messages and information relating to Ms. EIlis, and the conduct was intended (and in fact did) create fear and intimidation in the Petitioner.

Except, as the EFF reminds us, under section 230, there is no duty to remove content and no liability for failing to remove that content even if you can. In the famous Zeran case, the court clearly held:

[L]awsuits seeking to hold a service liable for its exercise of a publisher's traditional editorial functions – such as deciding whether to publish, withdraw, postpone or alter content – are barred. The purpose of this statutory immunity is not difficult to discern. Congress recognized the threat that tort-based lawsuits pose to freedom of speech in the new and burgeoning Internet medium.

As the EFF post notes, this does not mean that those who said illegal things are not liable, but "the responsibility lies with the speaker." Having the court issue such a broad order barring speech and pinning the blame on the site for statements of users goes beyond what the law allows.

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Are The Old Enablers Becoming The New Gatekeepers?

Mike Masnick — Fri, 14 Dec 2012 09:58:00 PST

We've argued, for a long time, that just railing against "middlemen" misses the point. There are always middlemen. But not all middlemen are created equal. The distinction, that we've discussed multiple times, is the difference between enablers and gatekeepers. That is, historically, many middlemen came to power because they were gatekeepers. If you wanted to do something -- be a musician, write a book, sell a new product -- you effectively had to get "approval" and support from a gatekeeper who had access to those markets. Being a gatekeeper gave them enormous power, such that the gatekeepers often became central to the market, rather than the people/companies they were working with and it also allowed them to craft ridiculous deals that were incredibly favorable to themselves, at the expense of those they were working with. That, of course, is why there tends to be so much inherent antipathy towards traditional gatekeepers.

In contrast to that -- and what we found most exciting about many of the new companies that had popped up over the last decade or two -- was the rise of middlemen as "enablers." These were situations where the middlemen weren't gatekeepers, and weren't "required" to do what you wanted to do. Instead, they were companies that helped give people/organizations a lift up on what they were trying to do, while keeping them and their work (rather than the middlemen) central to the market. So, when you see things like eBay or Etsy or Kickstarter, those are more enablers (and, yes, they do have some restrictions on use, but they're more policy based, rather than "can you make us money"-based).

Of course, the truth is that there's a spectrum along which these middlemen lie. It's not two separate buckets, where "enablers" are here and "gatekeepers" are there. Rather, intermediary companies often fall somewhere along that spectrum. It seems somewhat clear that, for the most part, newer firms are becoming successful by being enablers, rather than gatekeepers. But... they don't necessarily remain enablers their whole lives. One thing that is worth paying close attention to, is how companies shift over time, and when they start to shift from being enablers to being gatekeepers.

In fact, it seems like some of the big "clashes" we've been seeing in the tech/web world lately are along those lines. Lots of people have talked about Instagram and Twitter fighting with each other, which is just the latest in a series of "fights" among hot web companies blocking each other. Considering that many of these companies grew up on a web 2.0 ethos of openness and sharing -- and we're now watching them get more locked down, proprietary and limiting -- it seems obvious that some of these companies are moving along the spectrum from enabler to gatekeeper.

Anil Dash recently wrote a great post in which he frets about the fact that we're effectively losing key parts of the open web, which made the web great. You should read the whole post, as I couldn't do it justice summarizing it here. Again, it seems like many of his points are really about some of the more successful "internet" companies moving along that spectrum more towards the gatekeeper side of things, and that clashing with the more open spirit that the enablers built their reputations on. Dash, rightly, points out that this is self-correcting over time. We shouldn't necessarily fear the new gatekeepers, mainly because a gatekeeper business model, while lucrative in the short-term, is unsustainable in the long term. Companies, which move along that chain chasing the easy money, need to learn that they do so at their own peril. Becoming a gatekeeper merely opens up massive opportunity for a new enabler to disrupt you. That's a lesson that too many companies learn way too late.

That said, Dash fears that because a new generation is growing up in a world with more closed systems, that we may lose some generational knowledge of what came before:

This isn't some standard polemic about "those stupid walled-garden networks are bad!" I know that Facebook and Twitter and Pinterest and LinkedIn and the rest are great sites, and they give their users a lot of value. They're amazing achievements, from a pure software perspective. But they're based on a few assumptions that aren't necessarily correct. The primary fallacy that underpins many of their mistakes is that user flexibility and control necessarily lead to a user experience complexity that hurts growth. And the second, more grave fallacy, is the thinking that exerting extreme control over users is the best way to maximize the profitability and sustainability of their networks.

The first step to disabusing them of this notion is for the people creating the next generation of social applications to learn a little bit of history, to know your shit, whether that's about Twitter's business model or Google's social features or anything else. We have to know what's been tried and failed, what good ideas were simply ahead of their time, and what opportunities have been lost in the current generation of dominant social networks.

I both agree and disagree. I'm among those who get a bit frustrated when I see new entrepreneurs trying something that was done before -- and they seem to have no knowledge of it (ditto for reporters who cover the big "new thing" without mentioning that half a dozen companies did exactly the same thing a decade earlier). But, some of that, I'll admit, may just be the onset of old fogeyism. Yes, there's value in knowing the past, and learning from it, but there is also value in the naivete with which some new entrepreneurs jump into the pool -- often not fully understanding the past. Will they repeat some of the mistakes? Sure. Absolutely. But not being burdened with the past can sometimes be a key ingredient in redoing something that failed in the past, and in somehow making that slight unexpected tweak that just makes it work.

So, I agree wholeheartedly that the "new gatekeepers" mean that we've lost some sense of what made the last generation of internet companies great. And I do hope that the next generation that comes along can similarly disrupt the last generation, often by being the enablers that break up their new gatekeeper role. And I think that companies who understand the history of how enablers disrupt gatekeepers should understand why progressing down that spectrum in search of short-term profits can lead to long-term pain. So I think it's wise for those companies to learn from history. But I'm less worried about the new entrepreneurs jumping into the space. They'll likely find their opportunities in being the new enablers, because that's where the disruption occurs.

Watching the cycles of innovation can be a fascinating (and at times frustrating) past time. Companies make the same mistakes over and over again. The ones, which actually don't fall for the usual traps, are few and far between. But, in the long run, the new startups tend to be pretty good at showing the old guard that they chose the wrong path.

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Wikileaks, Intermediary Chokepoints And The Dissent Tax

Mike Masnick — Mon, 27 Dec 2010 10:59:06 PST

We already posted Glyn Moody's response to Jaron Lanier's critique of Wikileaks, but I also wanted to point to and discuss an excellent rebuttal/debunking to Lanier's piece by professor Zeynep Tufecki, who notes that, contrary to Lanier's claims, Wikileaks hasn't exposed "the hazards of nerd supremacy," but rather the "dissent tax." The dissent tax is a great way to summarize the point I've been trying to make about how Wikileaks has really exposed corporate intermediaries who are too centralized. In Tufecki's explanation, the "cost" of avoiding those intermediaries is the dissent tax:

What the Wikileaks furor shows us is that a dissent tax is emerging on the Internet. As a dissident content provider, you might have to fight your DNS provider. You might need to fund large-scale hosting resources while others can use similar capacity on commercial servers for a few hundred dollars a year. Fund-raising infrastructure that is open to pretty much everyone else, including the KKK, may not be available. This does not mean that Wikileaks cannot get hosted, as it is already well-known and big, but what about smaller, less-famous, less established, less well-off efforts? Will they even get off the ground?

These developments should alarm every concerned citizen, even those who are thoroughly disgusted by Wikileaks. This is the issue that the Wikileaks furor has exposed, not nerd ideology. This is the story and likely will be more important than the release of diplomatic cables (which were already available to millions of people) through major newspapers after scrutiny by journalists. This question will stay with us even if Wikileaks dissolves, and Julian Assange is never heard from again.

This does such a nice job of summarizing the point I'd been trying (and probably failing) to make over the past few weeks that it's worth reading again. Of course, the real question is what happens next. And what we're seeing is that the response is for a lot of smart people to start looking at all these chokepoints that have created that dissent tax, and look for ways to route around them, and build more distributed, more censor-proof infrastructure pieces, such that any such dissent taxes in the future will be minimized.

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Wikileaks & ICE Domain Seizures Show How Private Intermediaries Get Involved In Government Censorship

Mike Masnick — Thu, 2 Dec 2010 15:01:42 PST

There have been two big stories this week, both of which have elements of US government censorship of speech. The first, of course, is the pressure put on Amazon to drop Wikileaks as a customer of its S3 storage. The second is Homeland Security seizing a bunch of domain names by getting VeriSign to hand them over. In both cases, defenders of these actions claim they're not censorship, but both appear to involve the US government stepping in and either explicitly or implicitly getting a US corporation to block a form of speech. That's concerning.

Of course, beyond the problem that the government would be doing this in the first place is a separate concern: the role of corporations in helping make this happen. Some have argued, in the case of Amazon, that as a private company it has the right to refuse service to anyone. That's absolutely true. But if it's refusing service based on political pressure from those in positions of power, that's still censorship. While I don't buy into the idea that companies like Google and Facebook are monopolies, Ethan Zuckerberg does raise a very good point (talking about the Amazon/Wikileaks situation) about the role of corporate giants as intermediaries that can help a government censor:

If they simply responded to pressure from a US Senator, or to boycott threats, it sends a very disturbing message: that Amazon will remove content under political pressure. Yes, Amazon is within its legal rights to refuse service to a customer… but as I’ve argued previously, they’re a private company responsible for a public space. That’s the nature of the internet – we use it as a space for public discourse, though the sites we use for much of our discussion are owned by private corporations and controlled by terms of service that are significantly more stringent than restrictions on public speech.

The rise of internet hypergiants like Amazon that host servers for hundreds of thousands of clients makes these potential conflicts more clear. If you are dissatisfied with the terms of service of your hosting provider, you can always find another… up to a point. There’s been massive consolidation in the web hosting market, and companies like Amazon are likely to control large shares of the market in the future, both because there are economies of scale in providing low-cost service, and because large server farms can more effectively defend from attacks like DDoS. But if large providers like Amazon won’t take on clients like Wikileaks, they’re forced onto smaller ISPs, which may be more costly and less able to thwart DDoS attacks.

I'm not as convinced that this is a problem in the web server space yet. There are still other places that Wikileaks can certainly go. But when it comes to domain names, the central nature of companies like VeriSign is at least a concern. It's also why more distributed solutions become a lot more interesting.

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The Power Of Intermediaries To Silence Speech Online

Mike Masnick — Mon, 7 Jul 2008 16:50:41 PDT

While plenty of people worry about the possibility of government censorship online, some are noticing that the real issue isn't with government censorship but the fact that various intermediaries, in the form of service and application providers have the power to make content disappear online -- and they are often being pressured to do so, even if it's perfectly legal. This means that various hosting companies or other services, such as MySpace and Facebook often have tremendous power to hide content that it dislikes (or that someone else convinces them they should take down).

While the really egregious examples of taking down content are often brought to light by people complaining, it is a reminder that you might not really control all the content you think you control. This can be true even if you think you "control" your own domain. If the content is hosted by a service provider, often it can be convinced to pull down your content. While this should lead to more companies who promise not to get involved, there really are only a few who promote themselves that way (and it often gets even more difficult with laws that require "notice and takedown" such as the DMCA in the US). While this might not be a huge problem for most people, it is worth remembering how much power these various intermediaries may have over what you consider to be "your" content.

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