FOSTA Provides Another Tool For Silencing People You Dislike

from the liability-for-censorship dept

For many years, we've discussed all the different ways that putting liability on intermediaries and internet platforms leads to greater censorship. The liability alone creates strong incentive to shut down speech rather than risk the potential of lawsuits and huge payments. The most obvious example of this for years has been the DMCA process, where the takedown process is quite frequently used for censorship purposes. Indeed, there are many cases where people seem to assume that they can (and should) use the DMCA to take down any content they dislike, whether or not it has anything to do with copyright at all.

This is a big part of the reason why we were so concerned with FOSTA. While the law is officially supposed to be about "sex trafficking" and "prostitution" the bill actually does absolutely nothing to help victims or go after actual traffickers. Instead, it pins massive liability (including criminal liability) on platforms if they're used for trafficking or prostitution. Given that, it now becomes much easier to take down certain content or close certain accounts by merely suggesting that they are involved in trafficking or prostitution.

Case in point: Engadget recently had a story talking about how PayPal (and to a lesser extent, Patreon) appeared to be cutting off the accounts of various ASMR YouTubers. Autonomous Sensory Meridian Response (ASMR) is a condition in which people who hear certain noises -- often whispering or soft scratching -- tend to experience a sort of "tingling" sensation. It's been talked about for years, and a bunch of YouTubers have built up followings making ASMR recordings. Earlier this year, we wrote about China banning some ASMR videos as "pornography." However, most ASMR videos are not sexual or pornographic in any way.

The Engadget article highlights how PayPal began banning a bunch of ASMR video creators, apparently in response to those creators being targeted on 8chan. The article suggests that it's pure trolling on the part of the 8chan users, but reading through the thread there, it's slightly more complicated (though, no less stupid). Many of the posts are misogynistic attacks on the women, and many claim that they're using ASMR as a front to sell "sexual content" and so some of them are arguing that they're really just trying to enforce the terms of service on PayPal and Patreon.

But there's something else -- some of the 8chan users claim that people in the ASMR community have been using the DMCA to silence critics as well, so to them, reporting the ASMR video creators is just a way of fighting back.

As is often the case, all of the motives here are suspect, and none of the narrators are particularly reliable. But what is clear is that intermediary liability laws become a weapon in online wars to try to silence people for whatever reason. The 8channers claim that the ASMR folks are sending bogus DMCA notices, which leads to (accurate or not) reports of ASMR accounts offering up sexual content, and platforms like PayPal and Patreon are then in a position where they're strongly compelled to just take those accounts down, rather than face any potential liability at all from FOSTA (or the DMCA).

Just sorting out who did what to whom in this situation is a total mess (I've wasted an afternoon reading all sorts of things on it, and it's next to impossible to get an accurate picture of what's really going on). But, it has created a world where when someone pisses you off online -- for good or bad reasons -- you can resort to claims that would place liability on the platforms if they don't cut off the users. And thus, people get cut off. No platform has the resources (or desire) to adjudicate what's really going on here at all... and thus, we just end up with widespread censorship.

This is likely to continue and expand, especially as intermediary liability protections are chipped away at on a grand scale. If you give people tools to censor, they will be abused, and those pushing to cut back on intermediary liability continue to play down the risk of widespread censorship and (especially) attacks on speech they actually support. But this kind of thing happens all the time, and punching giant holes in CDA 230 and similar laws will only make the issue much, much worse.


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  • icon
    hij (profile), 27 Sep 2018 @ 8:07am

    Free speech means let them be and not try to sort it out

    Just sorting out who did what to whom in this situation is a total mess

    The notion that some busybody feels the need to sort it out and make things right is the problem. People are messy, and interactions between people can be a cesspool or dark thoughts. There is no need to sort things out and make things right. The very nature of free speech requires us to allow people to wallow in their own mud holes without interference and without retribution for both real and imagined insults.

    reply to this | link to this | view in chronology ]

    • icon
      James Burkhardt (profile), 27 Sep 2018 @ 10:07am

      Re: Free speech means let them be and not try to sort it out

      You miss real issues in the comment 'making it right'. There are accusations of DMCA abuse to stifle free expression - those need to be addressed, either by resolving actual infringement or punishing those abusing the law. But thanks to warped intermediary liability, the platforms can not just wait it out, they have to decide. And since it is hard to make that determination, silence the speech.

      There are also accusations of TOS violations being used to shut down the speech of those whose speech is not in the form they desire. And determining the right or wrong of the claims is hard. But using accusations of FOSTA-applicable material, the accusers are forcing rapid decision making of intermediaries, resulting in the silencing of speech rather than risk liability.

      In both cases, the drive to hold someone, anyone, accountable leads to the suppression of speech without due course, in contrast to your expressed position of non-interference. Which suggests to me you are trolling/parody, because your post is wildly contradictory. In either case, it does not advance the discussion, and is not entertaining either. Its just clutter. Have a flag.

      reply to this | link to this | view in chronology ]

      • icon
        hij (profile), 27 Sep 2018 @ 10:44am

        Re: Re: Free speech means let them be and not try to sort it out

        My apologies for being too terse. I was trying to say that the efforts to increase intermediary liability comes from a desire to solve problems that are best left alone. Abusing legal tools such as the DMCA is a problem that should be addressed. The problem of people being nasty to one another is not a problem that should be addressed by increasing the responsibilities of service providers.

        reply to this | link to this | view in chronology ]

    • icon
      Stephen T. Stone (profile), 27 Sep 2018 @ 10:10am

      This is a situation where trolls have weaponised the legal system—specifically, FOSTA and the DMCA—against free speech they dislike. I would think that this situation calls for companies such as PayPal to “sort things out and make things right”—even if they do so only to avoid a PR debacle.

      reply to this | link to this | view in chronology ]

      • icon
        Hugo S Cunningham (profile), 27 Sep 2018 @ 11:47am

        Re:

        Only Congress or Federal Courts can "make things right"-- by drastically curbing FOSTA. As it stands now, for Paypal: erring on side of censorship-- zero losses; erring on side of free speech-- ruinous losses.

        reply to this | link to this | view in chronology ]

        • icon
          That One Guy (profile), 28 Sep 2018 @ 12:18am

          Re: Re:

          Only Congress or Federal Courts can "make things right"-- by drastically curbing FOSTA.

          If by 'curbing' you mean 'killing it in it's entirety' then yes, that is most certainly what should be done.

          reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 27 Sep 2018 @ 9:31am

    I wonder what would happen if these flawed laws were used to target the people who are responsible for them being in existence.

    reply to this | link to this | view in chronology ]

  • identicon
    Glenn, 27 Sep 2018 @ 9:44am

    At some point it looks like the "online world" will implode due to the complete lack of freedom of speech. So, Congrats! to all the stupid** asswipes out there who made this possible. (**Be careful what you wish for...)

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 27 Sep 2018 @ 10:00am

    Are there any redeeming features to 8chan, or is still a place I can dismiss as being for the people who are so vile they have been kicked off 4chan?

    reply to this | link to this | view in chronology ]

    • icon
      Stephen T. Stone (profile), 27 Sep 2018 @ 10:13am

      Re:

      Eh, only some of them were kicked off 4chan in the wake of Gamergate. The rest figured they were better off diving into a deeper shithole than 4chan—one run by a guy who gives even fewer fucks about what happens on his site than Moot and Hiroshi ever did/will.

      But to answer your question: No, nothing redeems 8chan in any way.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 27 Sep 2018 @ 10:52am

    Birds of a feather.

    I'm not the least bit surprised. DMCA and FOSTA are birds of a feather.

    reply to this | link to this | view in chronology ]

  • identicon
    Digitari, 27 Sep 2018 @ 12:21pm

    "Lawful" internet

    I think (censored) (dmca'd) and government (redacted) singing (riaa'd). Like in the movie (mpaa'd). For more information, call #(fosta'd)

    (web2020)

    reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    John Smith, 27 Sep 2018 @ 4:38pm

    I don't see a problem here, outside of having to listen to Little Mikey stirring up his Pirate Church again.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 28 Sep 2018 @ 12:05am

      Re:

      Isn’t it past you bedtime you fucking pussy?

      reply to this | link to this | view in chronology ]

      • identicon
        Annonymouse, 28 Sep 2018 @ 9:29am

        Re: Re:

        Betty White had a most insightful commentary regarding that subject.

        I think gonads of the opposite gender as a descriptor is more appropriate.
        One hit results in incomprehendible screaming after all.

        reply to this | link to this | view in chronology ]

  • identicon
    John Smith, 29 Sep 2018 @ 2:02pm

    Could one not argue that the attempt to silence critics is actually fair fame and part of the "all's fair in love and flame wars?" usually success backfires against the cesor, oddly leading to better free speech.

    We may be going about this the wrong way.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 30 Sep 2018 @ 9:00am

      Re:

      The problem with DMCA and FOSTA abuse is that it can be used to get innocent people banned from a platform, which has knock on effects when their friends and family are on that platform.

      reply to this | link to this | view in chronology ]


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