Section 230 Isn't About Facebook, It's About You

Free Speech

from the know-what-you've-got-before-it's-gone dept

Longtime Techdirt readers know how important Section 230 is for the Internet to work, as well as many of the reasons why the proposed SESTA bill threatens the operation of the law, and with it the operation of the Internet. But especially for people less familiar with the ins and outs of Section 230, as the law hangs in the balance, we want to take moment to explain why it’s something that everyone should want to preserve.

These days a lot of people are upset with Facebook, along with many other of its fellow big Internet companies. Being upset with these companies can make it tempting to try to punish them with regulation that might hurt them. But it does no good to punish them with regulation that will end up hurting everyone ? including you.

Yet that?s what the bill Congress is about to vote on will do. SESTA (or sometimes SESTA-FOSTA) would make changes that reduce the effectiveness of Section 230 of the Communications Decency Act. While a change to this law would certainly hurt the Facebooks of the world, it is not just the Facebooks that should care. You should too, and here’s why.

Section 230 is a federal statute that says that people who use the Internet are responsible for how they use it?but only those people are, and not those who provide the services that make it possible for people to use the Internet in the first place. The reason it’s important to have this law is because so many people ? hundreds, thousands, millions, if not billions of people ? use these services to say or do so many things on the Internet. Of course, the reality is, sometimes people use these Internet services to say or do dumb, awful, or even criminal things, and naturally we have lots of laws to punish these dumb, awful, or criminal things. But think about what it would mean for Internet service providers if all those laws that punish bad ways people use the Internet could be directed at them. Even for big companies like Facebook it would be impossibly expensive to have to defend themselves every time someone used their services in these unfortunate ways. Section 230 means that they don’t have to, and that they can remain focused on providing Internet services for all the hundreds, thousands, millions, if not billions of people ? including people like you ? who use their services in good ways.

If, however, Section 230 stops effectively protecting these service providers, then they will have to start limiting how people can use their services because it will be too expensive to risk letting anyone use their services in potentially wrongful ways. And because it?s not possible for Internet service providers to correctly and accurately filter the sheer volume of content they intermediate, they will end up having to limit too much good content in order to make sure they don?t end up in trouble for having limited too little of the bad.

This inevitable censorship should matter to you even if you are not a Facebook user, because it won’t just be Facebook that will be forced to censor how you use the Internet. Ever bought or sold something on line? Rented an apartment? Posted or watched a video? Found anything useful through a search engine? Your ability to speak, learn, buy, sell, complain, organize, or do anything else online depends on Internet services being able to depend on Section 230 to let you. It isn’t just the big commercial services like Facebook who need Section 230, but Internet service providers of all sorts of shapes and sizes, including broadband ISPs, email providers, online marketplaces, consumer review sites, fan forums, online publications that host user comments? Section 230 even enables non-commercial sites like Wikipedia. As a giant collection of information other people have provided, if Section 230?s protection evaporates, then so will Wikipedia’s ability to provide this valuable resource.

Diminishing Section 230’s protection also not only affects your ability to use existing Internet services, but new ones too. There?s a reason so many Internet companies are based in the United States, where Section 230 has made it safe for start-ups to develop innovative services without fear of crippling liability, and then grow into successful businesses employing thousands. Particularly if you dislike Facebook you should fear a future without Section 230: big companies can afford to take some lumps, but without Section 230’s protection good luck ever getting a new service that’s any better.

And that’s not all: weakening Section 230 not only hurts you by hurting Internet service providers; it also hurts you directly. Think about emails you forward. Comment threads you allow on Facebook posts. Tweets you retweet. These are all activities Section 230 can protect. After all, you’re not the person who wrote the original emails, comments, or tweets, so why should you get in trouble if the original author said or did something dumb, awful, or even criminal in those emails, comments, or tweets? Section 230 makes many of the ordinary ways you use the Internet possible, but without it all bets are off.

Filed Under: cda 230, fosta, free speech, intermediary liability, platform regulation, section 230, sesta
Companies: facebook

Federal Court Shuts Down IMDb-Targeting 'Anti-Ageism' Law Permanently

Free Speech

from the blunt-end-for-stupid-law dept

In the annals of stupid legislation, California’s attempt to fight ageism at Hollywood studios by targeting third-party websites and using the First Amendment as a doormat will secure a prominent place in infamy. Rising from the ashes of a failed lawsuit brought by an actress who claimed IMDb cost her untold amounts of wealth by publishing her age, the law basically said IMDb couldn’t publish facts on its website. Those pushing the legislation included the Screen Actors Guild, which apparently doesn’t have the spine to stand up to studios and target them for discriminating against actors and actresses.

Last year, IMDb secured a temporary injunction against the state of California, forbidding it from enforcing the law while the courts sorted out its constitutionality. That day has arrived. A federal court has declared the law unconstitutional and permanently blocked California from going after IMDb because Hollywood producers participate in discriminatory hiring. (h/t Jacob Gershman)

The decision [PDF] is short. It takes only six pages for the district court to destroy the state’s arguments. First, it tells the state it’s not going to apply a lower First Amendment standard of scrutiny to its awful law.

California and SAG-AFTRA provide no reason to apply a lower level of judicial scrutiny to the statute than was applied at the preliminary injunction stage. AB 1687 cannot properly be considered a regulation of voluntary commercial contracts rather than a speech restriction. Upon the request of a subscriber to IMDbPro, the law requires IMDb to remove age-related information from its public-facing website, IMDb.com, regardless of the source of the information on IMDb.com. The law expressly contemplates that it will impact not just information obtained pursuant to a contractual relationship, but also information provided by members of the public…

That’s just the court’s warm-up. It gets worse for the state from there.

[A]s California concedes, AB 1687 is not properly considered a generally applicable law; moreover, its effects on expression are far from incidental. AB 1687 is a direct restriction on speech. The law prohibits certain speakers from publishing certain truthful information – information that, in many instances, is supplied by members of the public – because of concerns that a third party might use that information to engage in illegal conduct.

The court also points out the targeted speech isn’t commercial speech, which receives fewer Constitutional protections.

Nor can AB 1687 plausibly be characterized as a commercial speech restriction. The speech at issue is factual information about entertainment professionals, conveyed – at least on IMDb.com – in a manner unconnected to any commercial transaction… The fact that IMDb has a financial interest in people’s reliance on IMDb.com for information doesn’t transform the age-related information restricted by AB 1687 into commercial speech.

The court also has some choice words for the Screen Actors Guild, which really should have known better than to have supported this censorial garbage.

SAG-AFTRA contends that publication of facts about the ages of people in the entertainment industry can be banned because these facts “facilitate” age discrimination – an argument that, if successful, would enable states to forbid publication of virtually any fact. There is no support in controlling case law for the proposition that a state may ban publication of facts to impede a third party’s possible reliance on those facts to engage in discrimination.

If SAG really wants to do something about discrimination, it should use its collective weight to make changes in the studio system, rather than enable censorship and threaten the same protections that allow movies to be made without government interference.

It’s a stupid law and the district court does everything but directly call it stupid during the course of its six-page decision. It points out the state has plenty of ways of curbing age discrimination that don’t involve walking all over the First Amendment. The fact that previous legislative efforts have failed is no reason for the state to decide the publication of facts must be banned. The court also notes neither the state nor SAG have shown any causal link between IMDb’s publication of actors’ ages and age discrimination in Hollywood studios. Even if IMDb’s publications make it “easier” for studio heads to discriminate (a point the court does not concede), the statutory remedy deployed by California would only force IMDb to remove age info at the request of subscribers, which means there would still be plenty of data available for studios to “misuse.”

It’s a resounding loss for both entities — both of which should have known the law was destined for the federal court chopping block while it was still in its infancy. The fact the law even exists seems to indicate both the State of California and the Screen Actors Guild are too cowardly to confront Hollywood studio execs directly.

Finally, the court calls the state and SAG out for being so jacked up about punishing IMDb that they can’t even recognize the sort of discrimination they’re dealing with.

Although the previously-discussed flaws in the statute are more than enough to strike it down, one final point bears mention. The defendants seem to misunderstand the problem they hope to address through AB 1687. The legislative materials repeatedly cite an article discussing “[t]he commonplace practice of casting a much younger female against a much older male” and lamenting the significant underrepresentation of women in leading roles and in directors’ chairs. The defendants describe this as a problem of “age discrimination.” While that may be accurate on some level, at root it is far more a problem of sex discrimination. Movie producers don’t typically refuse to cast an actor as a leading man because he’s too old for the leading woman; it is the prospective leading woman who can’t get the part unless she’s much younger than the leading man. TV networks don’t typically jettison male news anchors because they are perceived as too old; it is the female anchors whose success is often dependent on their youth. This is not so much because the entertainment industry has a problem with older people per se. Rather, it’s a manifestation of the industry’s insistence on objectifying women, overvaluing their looks while devaluing everything else. The defendants barely acknowledge this, much less explain how a law preventing one company from posting age-related information on one website could discourage the entertainment industry from continuing to objectify and devalue women. If the government is going to attempt to restrict speech, it should at least develop a clearer understanding of the problem it’s trying to solve.

That’s some fine bench-slapping. Hopefully, it will deter the state and its SAG helpers from rushing back to the legislative halls to take another stab at crafting more First Amendment-violating stupidity.

Filed Under: ageism, ages, anti-slapp, california, free speech, hollywood, imdb, slapp
Companies: amazon, imdb

Trump Blames School Shootings On Violent Video Games, Movies; Suggests We Need Some Sort Of Rating System For Them

Free Speech

from the to-paraphrase-Cole-Porter,-'Well,-Can-You-Even!' dept

When a mass shooting occurs, politicians leap into the void with plenty of ideas of how to fix it. They can’t — or won’t — fix it, but they’re more than willing to sacrifice other Constitutional amendments to keep the Second Amendment intact. Kentucky Governor Matt Bevins was the first to fill the void with garbage following the latest school shooting by blaming violent video games, despite there being no evidence linking violent acts to violent video games.

Now it’s Donald Trump blaming school shootings on the First Amendment. During a discussion with Florida legislators (video here), Trump suggested doing something we’ve been doing for years.

Speaking to Florida Attorney General Pam Bondi, Trump said: ‘I’m hearing more and more people seeing the level of violence in video games is really shaping young people’s thoughts ‘

‘And then you go the further step, and that’s the movies. You see these movies, and they’re so violent a kid is able to see the movie if sex isn’t involved, but killing is involved, and maybe we need to put a rating system for that.’

It appears Trump is suggesting video games and movies need a rating system. I honestly don’t know where to go with this. Video games have had a rating system — one adopted and enforced voluntarily by developers — for nearly a quarter-century now. Movies have had ratings for more than 50 years, and that rating system has been revised a couple of times to allow for a more granular breakdown of possibly offensive content.

These are not new ideas. But these are our President’s ideas — ones that carry a faint whiff of impending government censorship. Imposing further restrictions on “violent” media isn’t going to solve an ongoing violence problem, but it will allow legislators (and sitting presidents) to pretend they did something useful.

Whether or not you agree the Second Amendment guarantees the right to load up on powerful weapons, any advocate of Constitutional rights would do well to remember they’re a bundle, not a la carte offerings. Trump is a fierce advocate of the Second Amendment but doesn’t seem to care much for the First Amendment. (Or the Fourth Amendment, Fifth Amendment, Sixth Amendment… unless it’s him or one of his being accused of criminal activity.)

So, if you want an intact Second Amendment, you’d better leave the rest of the rights alone. This is stupid, kneejerk… well, it’s definitely not “thinking.” This sort of thing suggests no active firing of synapses. Instead, it suggests the primordial survival instincts of a politician who views rights as privileges and is willing to harm those not immediately beneficial to him. Politicians like Trump and Governor Bevins are quick to blame things they don’t understand or don’t participate in. This allows them to feel like they’re taking action without risking anything that’s meaningful to them. It’s crass, stupid, short-sighted, and ultimately, it’s a sign of weakness. It takes no backbone to sacrifice things you don’t care about.

Filed Under: donald trump, first amendment, free speech, guns, movie ratings, ratings, school shooting, second amendment, video game ratings, video games

Germany's Speech Laws Continue To Be A Raging Dumpster Fire Of Censorial Stupidity

Free Speech

from the sandboxing-the-web,-one-country-at-a-time dept

Germany’s new law, targeting hate speech and other unpleasantness online, is off to a roaring start. Instead of cleaning up the internet for German consumption, the law has been instrumental in targeting innocuous posts by politicians and taking down satirical content. The law is a bludgeon with hefty fines attached. This has forced American tech companies to be proactive, targeting innocuous content and satire before the German government comes around with its hand out.

It took only 72 hours for the new law (Netzwerkdurchsezungsgesetz, or NetzDG) to start censoring content that didn’t violate the law. Some German officials have expressed concern, but the government as a whole seems content to let more censorship of lawful content occur before the law is given a second look. The things critics of the law said would happen have happened. And yet the law remains in full effect.

The spirit is willing but the body is weak, Sterling Jones says in the opening of his excellent post detailing more blundering attempts by the German government to enforce its terrible law.

While intended to stop the spread of disinformation and hateful rhetoric online, recently published “local law” complaints show that would-be censors are using NetzDG to target all variety of content, including mainstream news stories, sexual words and images, an anti-Nazi online forum, and criticism of German Chancellor Angela Merkel and of the NetzDG law itself.

So, that’s how the law is working out. Sterling’s post is filled with takedown notices forwarded to the Lumen Database — all of them targeting speech that doesn’t appear to be unlawful even under Germany’s screwed up laws. It also appears there’s a concerted effort being made to shut down criticism of Angela Merkel, targeting German author Martin Hilpert, who rarely has anything nice to say about the German Chancellor. The notices also target two German news publishers, with the attendant irony apparently lost on the censors issuing the notices.

The complaint against FAZ states that the newspaper engaged in “harmful or dangerous acts” for a story about NATO, while the complaint against Heise states that the tech website engaged in “hate speech or political extremism” for publishing concerns by the EU Commission that NetzDG could lead to “possible abuse by governments seeking to limit freedom of expression.”

Most ridiculously, an anti-Nazi group has been targeted by the government. Another takedown request declared the following picture to be “terrorist or unconstitutional content.”

Last but not least, something the German government finds every bit as concerning as snowmen dressed like Hitler: SEX. Jones reports the government has asked for the removal of everything from semi-nude photos of a model to public invitations for sex. The takedown request for the last one appears to have been written by an offended elderly neighbor.

If you can’t see/read the text, it says under “Explanation of Complaint”

Issue type: Sexual content
Google received a request to remove content from Google Plus based on the Netzwerkdurchsetzungsgesetz.
It’s indecent

And it is! But no so much you’d think a government entity would need to be involved!

The only surprising thing about the post is that it received positive answers, which seems contrary to how the internet usually works.There’s no telling the level of sincerity in the offers, but I would imagine they’re at least as sincere as the original post.

Germany’s attempt to control the internet is going to cause immense amounts of collateral damage. It’s unknown if any citizens have been charged for putting Nazi armbands on snowmen or shouting “I need sex” into the void, but service providers are taking few chances. Since they face fines equivalent to 40 million pounds per infraction, they’re obviously erring on the side of caution when dealing with these takedown demands. That’s not good for the internet as a whole and it’s downright catastrophic for German citizens who are pretty much assured they’ll be targeted by government takedowns for expressing their displeasure with these laws.

Filed Under: censorship, free speech, germany, hate speech

German Court Says Facebook's Real Names Policy Violates Users' Privacy

Free Speech

from the really? dept

With more and more people attacking online trolls, one common refrain is that we should do away with anonymity online. There’s this false belief that forcing everyone to use their “real name” online will somehow stop trolling and create better behavior. Of course, at the very same time, lots of people seem to be blaming online social media platforms for nefarious activity and trollish activity including “fake news.” And Facebook is a prime target — which is a bit ironic, given that Facebook already has a “real names” policy. On Facebook you’re not allowed to use a pseudonym, but are expected to use your real name. And yet, trolling still takes place. Indeed, as we’ve written for the better part of a decade, the focus on attacking anonymity online is misplaced. We think that platforms like Facebook and Google that use a real names policy are making a mistake, because enabling anonymous or pseudononymous speech is quite important in enabling people to speak freely on a variety of subjects. Separately, as studies have shown, forcing people to use real names doesn’t stop anti-social behavior.

All that is background for an interesting, and possibly surprising, ruling in a local German court, finding that Facebook’s real names policy violates local data protection rules. I can’t read the original ruling since my understanding of German is quite limited — but it appears to have found that requiring real names is “a covert way” of obtaining someone’s name which raises questions for privacy and data protection. The case was brought by VZBZ, which is the Federation of German Consumer Organizations. Facebook says it will appeal the ruling, so it’s hardly final.

On the flip side, VZBZ is also appealing a part of the ruling that it lost. It had also claimed that it was misleading for Facebook to say that its service was “free” since users “pay” with their “data.” The court didn’t find that convincing.

It will certainly be interesting to see where the courts come out on this after the appeals process runs its course. As stated above, I think the real names policy is silly and those insisting that it’s necessary are confused both about the importance of anonymity and the impact of real names on trollish behavior. However, I also think that should be a choice that Facebook gets to make on its own concerning how it runs its platform. So I’m troubled by the idea that a government can come in and tell a company that it can’t require a real name to use its service. If people don’t want to supply Facebook with their real name… don’t use Facebook.

But, honestly, what’s really perplexing is that this is all coming down at the same time that Germany — especially — has been trying to crack down on any “bad content” appearing on Facebook, demanding that Facebook wave a magic wand and stop all bad behavior from appearing on its site. I’d imagine that’s significantly harder if it has to allow people to use the site anonymously. This is not to say that anonymity leads to more “bad” content (see above), but it certainly can make moderating users much more difficult for a platform.

So, if you’re Facebook, at this point you have to wonder just what you have to do to keep the service running in Germany without upsetting officials. You can’t let anything bad happen on the platform, and you can’t get user’s names. It increasingly seems that Germany wants Facebook to just magically “only allow good stuff” no matter how impossible that might be.

Filed Under: anonymity, data protection, free speech, germany, privacy, real names
Companies: facebook, fzbz

One Down: Instagram Caves To Russian Censorship As All Eyes Turn To YouTube

Free Speech

from the don't-be-evil dept

We had just been talking about Instagram and YouTube facing site blocks in Russia all because a billionaire didn’t like his dirty laundry exposed online. For brief background, a noted Russian dissident, Alexy Navalny, had published photos of billionaire Oleg Deripaska and Deputy Prime Minister Sergey Prikhodko relaxing on a yacht with a young woman variously described as a model and escort fawning over them. Importantly, the salacious nature of the photos and videos is only half of the reason Navalny is drawing attention to them. The other reason is his accusations of corruption in government, as a massively wealthy oligarch consorts in this fashion with a high-ranking member of the federal government. Despite that, or perhaps because of it, Russian courts had handed Deripaska a legal victory and ordered sites hosting the images, including Instagram and YouTube, to take them down. Russia’s notoriously corrupt site-blocking agency, Rozcomnadzor, issued an edict that the images be removed or the sites would face a potential full block in Russia.

In that post as well, we posited that American companies should not be assisting authoritarian regimes in political censorship of this sort. Well, it seems that Facebook’s Instagram has decided to cave to the censors.

A spokeswoman for Facebook would not discuss the specifics of the case but confirmed that it had decided to comply with Roskomnadzor’s demands.

“When governments believe that something on the internet violates their laws, they may contact companies and ask us to restrict access to that content,” she said. “We review such requests carefully in light of local laws and where appropriate, we make it unavailable in the relevant country or territory. We are transparent about any content restrictions we make for government requests with local law in our Transparency Report.”

Let’s be clear about what happened here. A political opponent of the current Russian regime posted embarrassing photos showing both a potentially salacious act with a young woman and, more importantly, a potentially inappropriate relationship between government and a wealthy businessman. Whatever level of transparency Facebook desires to have on this matter, the simple fact is that an American company has chosen to bow to what certainly seems like pure political censorship. Whatever the privacy concerns Deripaska may have raised in court, it should be clear to anyone that similar pictures of some every-day person in Russia would not have been treated with so heavy a hand. This all looks to have been done to avoid political embarrassment above anything else.

And, so, now all eyes turn to Google.

Its response contrasts with that of Google’s YouTube service. It had been ordered to block several clips before the end of Wednesday. But it has taken no such action.

Will Google cave as well? If I were to bet on the matter, that seems an outcome at least as likely as any other, but the company certainly shouldn’t give into such demands. And, frankly, if any company has the power to get into a staring contest with the Russian government, it’s Google. Whether it has the backbone for it remains to be seen, but I would guess there would be far too much backlash over a full block of YouTube in Russia to be worth the government blocking the site in full.

And, again, it’s just not a good look to have an American company support this kind of corruption and censorship. It’s a shame Facebook couldn’t find its stance on the matter, but perhaps Google can do better.

Filed Under: alexy navalny, censorship, oleg deripaska, rozcomnadzor, russia, sergey prikhodko
Companies: facebook, instagram, youtube

Instagram, YouTube Face Full Block In Russia After Billionaire Wins A Privacy Lawsuit Over Pictures With An Alleged Escort

Free Speech

from the real-subtle-guys dept

We’ve had ongoing discussions on this site about the ham-fisted website censorship policy that Russia has undertaken over the past few years. While the country was never one to embrace free and open speech and communication to the same degree as Western nations, recent times have seen a severe uptick in outright censorship with a variety of excuses rolled out for public consumption: copyright laws, stifling political opposition, and the protection of the privacy of public figures. The funnel point for all of this censorship is Russian agency Rozcomnadzor, itself the subject of corruption allegations, with a track record for racking up collateral damage numbers that would make any nation’s army blush.

Through it all, there have been suggestions that entire sites with massive global followings would be blocked. YouTube and Twitter were previously found to be in the crosshairs of the Russian government, but nothing immediately came of the threat. Now, however, both YouTube and Instagram may face a very real choice: bow to the censorship demands of Rozcomnadzor or face full site-blocks in Russia. And, perhaps most strangely, this has all come to a head over a Russian billionaire’s win in court to block the publication of photos and videos showing him on a yacht with what is reportedly an escort.

Russia may block access to YouTube and Instagram after billionaire Oleg Deripaska won a court injunction against videos and photographs that showed him and Deputy Prime Minister Sergey Prikhodko relaxing on a yacht with a woman described as an escort.

Deripaska won an order from the Ust-Labinsk district court in his native Krasnodar region ordering the removal of 14 Instagram posts and seven YouTube videos that breached his right to privacy, according to a spokeswoman for his Basic Element company. Anti-Kremlin campaigner Alexey Navalny said the order also threatens to block his website after he published an online film alleging that the videos and photographs posted by Anastasiya Vashukevich, who goes by the name Nastya Rybka, showed evidence of a corrupt relationship between the aluminum tycoon and the senior minister.

Following the court order, Roskomnadzor dutifully added the photo and video material to its list of things that must be censored and contacted YouTube and Instagram to order it to take the material off of its site or face being blocked throughout the country. For his part, Deripaska insists he just wants the specific photos and videos removed, not access to these entire sites. But from the point of view of the Russian censors, they don’t have the ability to block access to just that material, or to the accounts posting them. Instead, this will come down to YouTube and Instagram either participating in the censorship or being blocked outright.

“It’s impossible for internet providers to block certain pages on Instagram and YouTube,” and they’ll have to block the services unless the material singled out by the watchdog is deleted, said Karen Kazaryan, chief analyst at the Russian Association for Electronic Communications, an internet lobby group. There’s also a “high chance that Navalny may need to remove this information to avoid being blocked.”

According to Navalny, Google has already informed him that he needs to remove the material in question or his account will be banned. The video is still up as of the time of this writing, but if Google indeed tried to bow to the censors in Russia, that needs to be called out. The context here is that Navalny is a member of the political opposition to the Russian government and his posts on this topic have as much to do with accusations of an improper relationship between the billionaire and the Deputy Prime Minister as it does of sordid relationships with escorts. In fact, it’s quite likely that the former accusations are the real target here, while the photographs are simply the lightning rod drawing attention to them. If Google is actively seeking to participate in the censorship of political speech in that manner, that’s not a good look.

Navalny, for his part, is seeking to use this attempted censorship to his political advantage via the Streisand Effect.

The action against his investigation is “a brazen act of censorship,” Navalny wrote on his website, which also remained accessible on Tuesday. “I urge everyone to spread this video wherever you can.”

And that’s already occurred, with millions of views of these videos and pictures already logged and the numbers continuing to climb. Whatever the outcome of the decision to censor YouTube and Instagram entirely or not, it should be clear that American companies ought not help corrupt foreign governments silence their political opponents.

Filed Under: alexey navalny, censorship, oleg deripaska, roskomnadzor, russia, sergey prikhodko
Companies: facebook, google, instagram, youtube

Activist Sues ICE For Its Unconstitutional Targeting Of Immigrants' First Amendment-Protected Activities

Free Speech

from the IF-YOU-DONT-LIKE-ICE-THAN-GO-BACK-TO-YR-COUNTRY-ETC dept

ICE has been instructed to make the nation safer by deporting the “worst of the worst.” The nation will be made secure again, said the DHS, pointing to its report declaring three-quarters of those convicted for terrorism offenses were “foreign-born.” Of course, to reach this ratio, the DHS had to count people the US government had extradited to the US to face trial for terrorism attacks committed in foreign countries, but whatever. The point is: foreigners are dangerous and ICE is going to remove them. An ongoing “challenge” for ICE has been finding enough dangerous immigrants to deport, so it’s had to change its strategy a bit.

So, if we’re trying to root out would-be terrorists and MS-13 gang members and undocumented immigrants with long domestic criminal rap sheets, why is ICE targeting people for their First Amendment activities? That’s what one rights activist wants to know, and he’s taking ICE to court to force it to explain itself. Kevin Gosztola of ShadowProof has more details.

Immigrant rights activist Ravi Ragbir, who recently had his deportation stayed by a federal court, the New Sanctuary Coalition of New York City, Casa de Maryland, Detention Watch Network, the New York Immigration Coalition and the National Immigration Project of the National Lawyers Guild are all plaintiffs pursuing the First Amendment lawsuit.

“Federal immigration authorities have specifically targeted prominent and outspoken immigrant rights activists across the country on the basis of their speech and political advocacy on behalf of immigrants’ rights and social justice,” the lawsuit declares [PDF]. “These activists have been surveilled, intimidated, harassed, and detained, their homes have been raided, many have been plucked off the street in broad daylight, and some have even been deported.”

“The ‘broad discretion exercised by immigration officials,’ has been abused in a cynical effort to punish those who disagree with [President Donald Trump’s] administration. To sweep away all opposition. The government’s targeting of activists on the basis of their core political speech is unfair, discriminatory, and un-American. And it violates the First Amendment.”

Ragbir isn’t dangerous. Nor should he be anyone’s idea of someone ICE should expend resources deporting. Ragbir has lived in the US for 25 years, has advocated for people like him, and has generally been all the things we want from US citizens. The only problem is that he isn’t one. He’s faced a “final order of removal” since 2007, but that has been extended time and time again because he’s someone who’s a credit to this country, even if he doesn’t have the paperwork in to make it permanent.

Despite this, ICE arrested him and sent him from New York to a Miami detention facility. He was not given any of the courtesies one expects would be given to someone who’s lived peacefully and productively in the United States for a quarter-century. Instead, he was treated like the “worst of the worst,” and not even given a chance to get his personal affairs in order or say goodbye to the family he would be leaving behind.

This resulted in a scathing court order from a federal judge in New York. The full order [PDF] is worth reading but here are a few of the highlights. It opens with this devastating paragraph and the heat never lets up.

There is, and ought to be in this great country, the freedom to say goodbye. That is, the freedom to hug one’s spouse and children, the freedom to organize the myriad of human affairs that collect over time. It ought not to be — and it has never before been — that those who have lived without incident in this country for years are subjected to treatment we associate with regimes we revile as unjust, regimes where those who have long lived in a country may be taken without notice from streets, home, and work. And sent away. We are not that country; and woe be the day that we become that country under a fiction that laws allow it. We have a law higher than any that may be so interpreted — and that is our Constitution. The wisdom of our Founders is evident in the document that demands and requires more; before the deprivation of liberty, there is due process; and an aversion to acts that are unnecessarily cruel.

[…]

In sum, the Court finds that when this country allowed petitioner to become part of our community fabric, allowed him to build a life with and among us and to enjoy the liberties and freedoms that come with that, it committed itself to allowance of an orderly departure when the time came, and it committed itself to avoidance of unnecessary cruelty when the time came. By denying petitioner these rights, the Government has acted wrongly.

While the court agrees ICE has the statutory authority to enforce deportation actions, it does not have the authority to pursue them in this manner. Its treatment of Ragbir was unconstitutional, given Ragbir’s extended stay in the US without incident and frequent timely renewals of his work permit and permission to stay. The tactics used by ICE were cruel and capricious. And, as argued by Ragbir in his lawsuit, likely the result of ICE’s disagreement with his First Amendment activities. All of this is unconstitutional, even if technically legal under ICE’s statutory guidance.

Here, instead, the process we have employed has also been unnecessarily cruel. And those who are not subjected to such measures must be shocked by it, and find it unusual. That is, that a man we have allowed to live among us for years, to build a family and participate in the life of the community, was detained, handcuffed, forcibly placed on an airplane, and today finds himself in a prison cell. All of this without any showing, or belief by ICE that there is any need to show, that he would not have left on his own if simply told to do so; there has been no showing or even intimation that he would have fled or hidden to avoid leaving as directed. And certainly there has been no showing that he has not conducted himself lawfully for years. Taking such a man, and there are many such men and women like him, and subjecting him to what is rightfully understood as no different or better than penal detention, is certainly cruel. We as a country need and must not act so. The Constitution commands better.

Ragbir isn’t suing ICE simply because of its targeting of him. His lawsuit points out he’s not the only activist ICE has taken action against, using similar unconstitutional tactics.

ICE agents arrested Jean Montrevil, a Haitian national immigrant rights activist, co-founder of the New Sanctuary Coalition, and green card holder, on January 3. It was mere days before Ragbir’s check-in, which led to his detention. Montrevil was deported to Haiti on January 9. Authorities forced him to leave his four children—all U.S. citizens.

According to the lawsuit, Montrevil’s lawyer asked Scott Mechkowski, the ICE Deputy Field Office Director for New York, why ICE agents were deployed to “apprehend” Montrevil at his home “months before his scheduled check-in.”

“We [ICE] war-gamed this over and over,” Mechkowski apparently replied. “[T]his was the best time and place to take him.”

Several more are listed in the lawsuit (and covered by Shadowproof). In each case, immigrants appear to have been targeted for their activism or engagement with entities providing shelter and care for other immigrants. None of those listed faced deportation for illegal acts and many of those had lived in the States for years, raising families and becoming positive additions to their communities.

ICE has been given free rein by the current administration which never misses an opportunity to portray undocumented immigrants as inherently dangerous. If this lawsuit goes far enough, it should lay bare ICE’s forays into unconstitutional behavior.

Filed Under: activists, dhs, first amendment, free speech, ice, immigration, ravi ragbir

Canadian Privacy Commissioner Report Says Existing Law Already Gives Canadians A Right To Be Forgotten

Free Speech

from the which-means-the-United-States-now-has-a-RTBF-apparently dept

The Privacy Commissioner of Canada is proposing something dangerous. Given the Canadian Supreme Court’s ruling in the Equustek case — which basically said Canada’s laws are now everybody’s laws — a recent report issued by the Commissioner that reads something into existing Canadian law should be viewed with some concern. Michael Geist has more details.

The Privacy Commissioner of Canada waded into the debate on Friday with a new draft report concluding that Canadian privacy law can be interpreted to include a right to de-index search results with respect to a person’s name that are inaccurate, incomplete, or outdated. The report, which arises from a 2016 consultation on online reputation, sets the stage for potential de-indexing requests in Canada and complaints to the Privacy Commissioner should search engines refuse to comply.

The Commissioner envisions a system that would allow Canadians to file de-indexing requests with leading search engines, who would be required to evaluate the merits of the claim and, where appropriate, remove the link from the search index or lower its rank to obscure the search result. Moreover, the commissioner would require search engines to actively block Canadians from accessing the offending links by using geo-identifying technologies to limit access in Canada to the results.

In other words, the Commissioner is looking to import Europe’s right-to-be-forgotten law, but without having to amend or rewrite any Canadian laws. The report interprets existing Canadian privacy protections as offering RTBF to Canadian citizens. And if it offers it to Canadians, it can be enforced worldwide, despite their being no local statutory right to be forgotten.

Geist notes there are several problems with the troubling conclusion the Commissioner has drawn. First, the privacy protections included in PIPEDA (Personal Information Protection and Electronic Documents Act) cover commercial activity only, regulating use of users’ personal data. When it comes to search results, no commercial transaction takes place. The search engine simply returns results the user asks for. Search engines display ads with the results, but there’s no purchase involved, nor is there necessarily a relinquishment of user info.

Just as importantly, the Commissioner’s conclusion — even if statutorily sound (though it isn’t) — runs directly contrary to the comments received from numerous stakeholders, including privacy groups.

The feedback from leading Internet services, media companies, academics, and civil society groups cautioned against creating a right to be forgotten in Canada. Without a foundation for its approach arising from the consultation, participants can be forgiven for wondering whether the report’s recommendations were a foregone conclusion.

As Geist points out, a right-to-be-forgotten, raised unbidden from existing privacy laws, turns search engines into tools of government micromanagement. Despite its noble aim, it will be abused more often than it is legitimately used. Fortunately, Google and other search engines have been actively challenging dubious requests. And the rest of the private sector has pitched in, with journalistic entities informing readers when convicted criminals, political figures, and other abusers of the system attempt to eradicate factual recountings of their misdeeds.

Filed Under: canada, censorship, data protection, free speech, global censorship, jurisdiction, privacy, right to be forgotten

Public School Board Member Threatens Boss Of Woman Who Spoke Out Against School Book Banning

Free Speech

from the it's-free-speech-all-the-way-down dept

The VC Star has a slightly bizarre article about a school board trustee of the Conejo Valley Unified School District (in Southern California) named Mike Dunn, who apparently was upset about a speech given by a mother at a board meeting. That mother — Jessica Weihe — also blogs on the site AnonymousMommy.com (though as far as I can tell, she was not “anonymous” in that people in the community appeared to know who she was). Weihe gave a perhaps slightly rambling speech at a recent board meeting. The details appear to be somewhat specific to some district policies on handling “mature” books, but suffice it to say that it appears that Dunn was arguing against certain books being on the curriculum because he felt their content was inappropriate. Among the books that there was some controversy about was Sherman Alexie’s quite well known book The Absolutely True Diary of a Part-Time Indian. Weihe’s speech mocked Dunn for having tried to get it off the curriculum, and accuses him of not having read the book, and over-reacting to why it might be a problem. Here’s a snippet from what she said:

Unlike Mr. Dunn, I actually read the book in its entirety. In fact, I led an online book reading of Part-Time Indian, in which 40 local parents participated in, so that we could be better informed as to the concern regarding this literature selection before its approval, concern which Mr. Dunn raised at a June board meeting over the phrase ?kicked him in the balls.? I have to say, I was quite disappointed to find no salacious material! You all had me bracing to clutch my pearls! Mr. Dunn, who cannot and has not confirmed he actually read the book in entirety, (I mean, he couldn?t even find time to attend board governance training) falsely and inappropriately asserted in a public letter to the Acorn that approving this book was akin to ?child abuse? and that it was ?pornographic? in nature. Aside from noting how reprehensible it is to assert that our curriculum committee and teachers want to impose pornography on our students and take part in an act of child abuse, if this were to be true, I find it curious it?s not asterisked as such here. It?s because it?s not pornographic, nor, as Mr. Dunn would have our community believe, child abuse.

There’s a lot more in the talk, but that gives you the basic idea. Dunn, not surprisingly, wasn’t happy about this. So… rather than respond or give his position, he decided to call Weihe’s boss and threaten to try to shame their company if she continued to say similar things about the school board or its members.

If you can’t read that, it says:

Scott,
I am told that you approve of the political activities of Jessica Wiehl (anomymous mommie).

Every time she slanders or libels the school district or a school board member during public comments at a board meeting, I am going to respond that Jessica she works for Mustang Marketing and that you support her opinions.

Her boss — Scott Harris — responded pretty quickly, and did so pretty thoroughly:

If you can’t read that, it says:

Mike,

Thank you for the courtesy of putting your threat in writing. However, before you go off half-cocked and wrong–again–and while you often have little apparent interest in the truth or facts, allow me to correct you in advance of you making good on your threats.

I support Jessica’s right to her views and to her expressing them. Her views are her own, not mine or my companies. If you’d like to point out that I support community involvement, community activity and freedom of speech–please do. You can open and close each meeting with that and hang a poster over your head that states the same thing. Heck, I’ll pay for the poster, if that helps.

If, as you have threatened, you choose to falsely point out that I support all her views, none of which she shares with me in advance of the meetings, I am putting you on notice that that is a false statement.

Again, so that I’m clear, supporting Jessica’s right to her opinions and expressing them in a public forum (and I do!), is far different from me supporting her opinions, which I may or may not, depending on her actual positions. I hope I’ve made this clear enough for you to understand.

And since I’m not convinced that you understand the definition of slander, I have included it here. I think if you take the time to read this – and to follow through with your threat – you’ll see you’ve exposed yourself – and the CVUSD – to a lawsuit.

n. oral defamation, in which someone tells one or more person an untruth about another, which untruth will harm the reputation of the person defamed. Slander is a civil wrong (tort) and can be the basis for a lawsuit.

Mike, have a terrific Thursday and maybe you can limit your threatening emails to just me, at least for today=)

Scott Harris

A number of other emails have since been sent, with Dunn “suggesting” that he and Harris go to mediation (I’m not quite clear what they have to mediate, but…). Harris responds to the mediation request by pointing out that there’s nothing to mediate, and he’s happy to meet if Dunn wishes to apologize (and, reminding Dunn that he supports Wiehl’s First Amendment rights and that doesn’t mean he agrees with her opinions).

Either way: what a mess. Having a public official make threats like that certainly appear to be attempts to stifle speech, which would be a flat out First Amendment violation. Some people might respond that public shaming, or even agitating to get someone fired, is using “more speech” against speech someone doesn’t like — and in many cases, that’s true. But when one is a public official, the calculus changes, because it becomes government attempting to suppress speech. From Okwedy v. Molinari:

A public-official defendant who threatens to employ coercive state power to stifle protected speech violates a plaintiff’s First Amendment rights, regardless of whether the threatened punishment comes in the form of the use (or, misuse) of the defendant’s direct regulatory or decisionmaking authority over the plaintiff, or in some less-direct form.

That seems fairly on point.

As for the cross claims of defamation… neither seem particularly strong, though Harris would probably have a slightly stronger argument. The only real statements of fact that I see in Wiehl’s original speech was about whether or not Dunn had read the book, but she lays out her reasons for thinking so (asking him to quote the problematic parts and him refusing to, as well as his non-answer about having read the book). Besides, it’s a tough lift to argue that saying someone hadn’t read a book is defamatory. As for Harris’s defamation threat in the other direction, obviously it would depend on what Dunn actually said, but it is at least true that he would have knowledge that his initial claim (of Harris supporting Wiehl’s positions) is false, and that could make it a bit dicier for Dunn. The fact that Wiehl is also claiming that someone left a voicemail at her employer’s office saying they would no longer do business with the company and would be telling all their friends not to do business with them (implying because of this) at least presents evidence of reputational harm done.

No matter what, though, this is a really bad look for Dunn. Not just in trying to stop high school kids from reading, but then trying to suppress the speech of someone who criticized him for blocking the book. Dunn, as a public official, has the right to speak his mind, but not to ban books or to suppress the speech of the public. Those are both pretty fundamental to the First Amendment.

Filed Under: book banning, conejo valley unified school district, defamation, first amendment, free speech, jessica weihle, mike dunn, school boards, scott harris, sherman alexie, threats