Court: Arresting A Driver For Shouting 'Fuck You' Out The Window At A Nearby State Trooper Is Unconstitutional

Free Speech

from the because-duh dept

Slowly but surely, law enforcement officers are being made to understand that speech they don’t like isn’t illegal speech. I mean, several of them likely already know this but they’re willing to roll the dice on a lawsuit rather than endure a minimal hit to their self-image.

This isn’t to say it’s a good idea to give cops the finger or tell them to go fuck themselves. This is just to say that doing these things isn’t a crime. It’s protected speech. Cops aren’t obliged to serve and protect citizens. That’s just a cool slogan to paint on the side of cruisers. But they are obligated to uphold Constitutional rights, which is something they seem to have a hard time doing.

Courts have reminded cops that flipping the bird isn’t an arrestable offense. It’s protected speech. They’ve also reminded cops that this is a form of protected criticism, as crude as it is. The very heart of First Amendment protections is the right of citizens to criticize their government. Sometimes criticism takes the form of a fleeting f-bomb from a passing vehicle.

Here’s how this latest reminder starts, courtesy of the Eighth Circuit Court of Appeals [PDF]:

In 2015, Trooper Cross was performing a routine traffic stop on a van pulled to the shoulder of a busy five-lane highway in Fort Smith, Arkansas. From 50 feet away, Trooper Cross heard Thurairajah, who was driving by, yell “f**k you!” out of his car window. The van’s occupants were a mother and her two young children. Thurairajah was driving at about 35 miles-per-hour on the far lane of the road moving in the opposite direction. Trooper Cross observed the two children in the van react to the yell.

Trooper Lagarian Cross should have let the story end there. At best, the story could have made it way back to the station with some embellishment and resentful commentary about ungrateful citizens and their big mouths. Instead, Trooper Cross did this:

Trooper Cross ended the traffic stop of the van and pursued Thurairajah, stopped him, and arrested him, citing Arkansas’s disorderly conduct law. Trooper Cross believed the shout constituted “unreasonable or excessive noise” under the law.

A stupid response to a stupid move. The arrestee spent several hours in jail before all charges were dropped. Thurairajah sued Trooper Cross and prevailed in the lower court. The trooper appealed. The Appeals Court doesn’t have any good news for him.

Cross argued he was entitled to qualified immunity because he reasonably believed Thurairajah’s “fuck you!” violated the law. The Appeals Court takes a not-so-subtle dig at the trooper’s rationale when discussing his arguments.

In other words, Trooper Cross is protected by qualified immunity if a reasonable officer in his shoes would have reasonably believed, even if mistaken, based on objective facts, that Thurairajah was violating the disorderly conduct statute’s excessive noise prohibition by shouting the two-word insult from a moving vehicle with an unamplified human voice.

The hinting at the ridiculousness of the trooper’s argument is followed by some case law, which shows there’s nothing on the books backing the trooper’s “reasonable officer” assertions.

Under the statute, the verbal content of Thurairajah’s yell is irrelevant. The statute does not penalize offensive speech, only unreasonable or excessive noise. Arkansas courts have not previously concluded that a two-word yell could violate the disorderly conduct statute’s unreasonable or excessive noise provision. To be sure shouting can form the basis of disorderly conduct. Those cases where shouting was part of a scenario that resulted in a finding of disorderly conduct, however, involved extended loud shouting and disruptive behavior or amplified sound. As the district court noted, context matters in analyzing the facts. In no case, has a two-word unamplified outburst constituted disorderly conduct.

It’s not even close.

Thurairajah’s shout was unamplified and fleeting, no crowd gathered because of it, city traffic was not affected, no complaints were lodged by anyone in the community, business was not interrupted, nor were an officer’s orders disobeyed. Thurairajah’s conduct may have been offensive, but it was not an unreasonable or excessive noise.

That’s the Fourth Amendment violation — depriving the passing driver of his freedom with a completely bogus arrest. Then there’s the First Amendment violation. Thurairajah claimed the arrest was a retaliatory response to his protected, two-word criticism of Trooper Cross. The court agrees.

First, Thurairajah’s profane shout was protected activity. See, e.g., Cohen v. California, 403 U.S. 15, 25 (1971) (holding where defendant walked through courthouse corridor wearing jacket bearing the words “F**k the Draft” in place where women and children were present and no showed no intent to incite disobedience to or disrupt the draft, state lacked power to punish defendant for underlying content of message the inscription conveyed). Second, Trooper Cross’s arrest was an action that would chill continued activity by a person of ordinary firmness. As we recognized in Hoyland, “there can be little doubt that being arrested for exercising the right to free speech would chill a person of ordinary firmness from exercising that right in the future.” And, according to a fair reading of Trooper Cross’s affidavit, the arrest was motivated, at least in part, by the content of the shout. Finally, as discussed above, Cross had neither probable cause nor arguable probable cause to arrest Thurairajah.

That’s all four prongs of the free speech retaliation test. And there’s no squeaking out of this, thanks to limited case law. Both rights were clearly established at the point Trooper Cross decided to terminate a traffic stop and arrest a passing driver for his drive-by f-bomb. Cross is headed back to the lower court to face the consequences of his stupid, retaliatory actions.

Filed Under: 1st amendment, 8th circuit, eric thurairajah, free speech, lagarian cross, police, retaliatory arrest

Republicans Blame CDA 230 For Letting Platforms Censor Too Much; Democrats Blame CDA 230 For Platforms Not Censoring Enough

Free Speech

from the which-is-it? dept

It certainly appears that politicians on both sides of the political aisle have decided that if they can agree on one thing, it’s that social media companies are bad, and that they’re bad because of Section 230, and that needs to change. The problem, of course, is that beyond that point of agreement, they actually disagree entirely on the reasons why. On the Republican side, you have people like Rep. Louis Gohmert and Senator Ted Cruz who are upset about platforms using Section 230’s protections to allow them to moderate content that those platforms find objectionable. Cruz and Gohmert want to amend CDA 230 to say that’s not allowed.

Meanwhile, on the Democratic side, we’ve seen Nancy Pelosi attack CDA 230, incorrectly saying that it’s somehow a “gift” to the tech industry because it allows them not to moderate content. Pelosi’s big complaint is that the platforms aren’t censoring enough, and she blames 230 for that, while the Republicans are saying the platforms are censoring too much — and incredibly, both are saying this is the fault of CDA 230.

Now another powerful Democrat, Rep. Frank Pallone, the chair of the House Energy and Commerce Committee (which has some level of “oversight” over the internet) has sided with Pelosi in attacking CDA 230 and arguing that companies are using it “as a shield” to not remove things like the doctored video of Pelosi:

But, of course, the contrasting (and contradictory) positions of these grandstanding politicians on both sides of the aisle should — by itself — demonstrate why mucking with Section 230 is so dangerous. The whole point and value of Section 230 was in how it crafted the incentive structure. Again, it’s important to read both parts of part (c) of Section 230, because the two elements work together to deal with both of the issues described above.

(c) Protection for ?Good Samaritan? blocking and screening of offensive material

(1) Treatment of publisher or speaker
No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

(2) Civil liability No provider or user of an interactive computer service shall be held liable on account of?

(A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or

(B) any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1).

It’s these two elements together that make Section 230 so powerful. The first says that we don’t blame the platform for any of the actions/content posted by users. This should be fairly straightforward. It’s about the proper application of liability to the party who actually violated the law, and not the tools and services they used to violate the law. Some people want to change this, but much of that push is coming from lawyers who just want the bigger pockets to sue. It involves, what I’ve referred to as “Steve Dallas lawsuits” after the character in the classic comic strip Bloom County, who explains why you should always focused on suing those with the deepest pockets, no matter how tangentially they are to the law violating.

But, part (2) of the law is also important. It’s the part that actually allows platforms the ability to moderate. Section 230 was an explicit response to the ruling in Stratton Oakmont v. Prodigy, in which a NY state judge ruled that because Prodigy wanted to provide a “family friendly” service, and therefore moderated out content it found objectionable (in order to support that “family friendly” goal), it therefore became automatically liable for any of the content that was left up. But, of course, that’s crazy. The end result of such a rule would be either that platforms wouldn’t do anything to moderate content, which would mean everything would be a total free for all — and you couldn’t have a “family friendly” forum at all, and everything would quickly fill up with spam/porn/harassment/abuse/etc — or platforms would basically restrict almost everything to create a totally anodyne and boring existence.

The genius of Section 230 is that it enabled a balance that allowed for experimentation and this includes the ability to experiment with different forms of moderation. Everyone focuses on Facebook, YouTube and Twitter — which all take moderately different approaches — but having a Section 230 is also what allowed for the radically different approaches taken by other sites: like Wikipedia and Reddit (and even us at Techdirt). These use very different approaches, some of which work better than others, but much of which is community-dependent. It’s that experimentation that is good.

But the very fact that both sides of the political aisle seem to be attacking CDA 230 but for completely opposite reasons really should highlight why messing with CDA 230 would be such a disaster. If Congress moves the law in the direction that Gohmert/Cruz want, then you’d likely get many fewer platforms, and some would just be overrun by messes, while others would be locked down and barely usable. If Congress moves the law in the direction that Pelosi/Pallone seem to want, then you would end up with effectively the same result: much greater censorship as companies try to avoid liability.

Neither solution is a good one, and neither would truly satisfy the critics in the first place. That’s part of the reason why this debate is so silly. Everyone’s mad at these platforms for how they moderate, but what they’re really mad at is humanity. Sometimes people say mean and awful things. Or they spread disinformation. Or defamation. And those are real concerns. But there need to be better ways of dealing with it than Congress stepping in (against the restriction put on it by the 1st Amendment), and saying that the internet platforms themselves either must police humanity… or need to stop policing humanity altogether. Neither is a solution to the problems of humanity.

Filed Under: cda 230, censorship, content moderation, frank pallone, louis gohmert, nancy pelosi, section 230, ted cruz

Australian Federal Police Raid Even More Journalists Over Leaked Documents

Journalism

from the setting-fire-to-freedom dept

Australia got scary in a hurry.

One day after raiding the home of News Corp Australia journalist Annika Smethurst over the publication of leaked documents detailing the government’s domestic surveillance plans, the Australian Federal Police raided ABC News Australia over leaked documents detailing the killing of unarmed civilians by Australian special forces in Afghanistan.

Somewhat surprisingly, the AFP did not prevent John Lyons, the executive editor of ABC News, from live-tweeting the entire raid. This resulted in an astounding stream of tweets (with photos!) showing the AFP was seeking a wealth of information from ABC offices, including notes, correspondence, reports, briefing documents, photographs, and anything else it could use to (presumably) find the source of the leaks.

The AFP claims the raid of the ABC offices has nothing to do with its raid of a journalist’s home the previous day. This is only true in the sense that two different sets of leaks were targeted. In the greater scheme of things, they are very definitely related, as is the investigation currently being pursued by the Department of Home Affairs targeting yet another journalist over a story about asylum seekers seeking to enter Australia by boat.

Journalists all over the world are shocked by the Australian government’s actions, which directly threaten press freedom in that country. The continuing expansion of its national security powers have reduced the rights of the country’s citizens. These powers are on full public display, being utilized in an incredibly damaging way.

The head of the Home Affairs office seems less than concerned about the destruction of rights and freedoms happening in the country he’s supposed to be protecting.

A later statement from the AFP said Home Affairs Minister Peter Dutton was “not notified prior to the execution of the warrants”.

“The AFP’s actions have been independent and impartial at all times,” it said.

“When the AFP receives referrals it assesses them for criminality and does not make value judgements on the issue instead identifying whether there has been any contraventions of Commonwealth Law, and when [sic] evidence as to whether the offence has been committed or otherwise.”

This bit of bureaucracy speech isn’t nearly as alarming as the statement from Prime Minister Scott Morrison, who characterized the no-longer-theoretical threat to journalism as solid policework.

Asked if the news troubled him, he said: “It never troubles me that our laws are being upheld.”

That’s how those up top feel about running leak investigations through the offices and houses of Australian journalists. There’s apparently nothing wrong with destroying a private sector instrument of government accountability in the name of national security.

Filed Under: australia, chilling effects, free speech, journalists, raids

Released Warrant Shows SFPD Started Monitoring Journalist's Phone Weeks Before Officers Raided His Home

Failures

from the internal-investigations-weird-rn dept

More details have surfaced about the San Francisco Police Department’s search of journalist Bryan Carmody’s residence. The affidavits for the search of his house remain under seal, but the SFPD’s police chief has already admitted these “lacked clarity.” This strongly suggests the affidavits didn’t mention Carmody’s profession to avoid having them rejected for violating California’s journalist shield law.

Some of this civil liberties-punching paperwork has been released. And it shows the SFPD spent several weeks monitoring Carmody’s communications before deciding to bring the rights violations to his doorstep.

San Francisco police obtained a warrant to search a freelance journalist’s phone records and were authorized to “conduct remote monitoring” on the phone more than two months before a controversial raid on his home and office, according to documents released Friday.

Officers executed the warrant on Bryan Carmody’s phone records on March 1 — the first of seven search warrants obtained in the investigation into who leaked him a report on the Feb. 22 death of Public Defender Jeff Adachi.

There’s no extended affidavit attached to the warrant [PDF], but the short description of the investigation makes no mention of Bryan Carmody’s line of work. All it does is claim Carmody is suspected to be involved in the theft of the leaked police report detailing public defender Jeff Adachi’s death.

Nature of investigation: Mr. Carmody is being investigated as a co-conspirator in the theft of the San Francisco Police report, involving the death investigation of Jeff Adachi. The criminal investigation focuses on the conspiracy to commit a crime, the theft of a police report, and the willful obstruction of justice.

This part of the warrant says the SFPD is only seeking phone records spanning two days in February. But on the next page, the court authorizes ongoing “remote monitoring” of Carmody’s phone “until the conclusion of the investigation.” This includes signals produced in “locations not open to the public or visual surveillance.”

This warrant wasn’t handed to the SF Chronicle by the court or the SFPD, but rather by Bryan Carmody, who was finally notified of this particular search three months after it happened.

The warrant also shows the SFPD had Carmody in its sights long before most of the public was aware he was the source of the leaked death report obtained by other reporters. As the Chronicle’s article points out, the first public statement on Carmody’s involvement came during a Board of Supervisors meeting in April in which the city’s public defender’s office revealed this information. The phone monitoring warrant was granted on March 1st, only days after news stations published the leaked document.

Every new development makes the SFPD look worse. The department may not be making the hole any deeper at this point, but its prior groundwork has proven to have created a far deeper hole than early estimates indicated.

Filed Under: 1st amendment, 4th amendment, bryan carmody, free speech, raids, sfpd, warrant

European Court Of Justice Suggests Maybe The Entire Internet Should Be Censored And Filtered

Legal Issues

from the oh-come-on dept

The idea of an open “global” internet keeps taking a beating — and the worst offender is not, say, China or Russia, but rather the EU. We’ve already discussed things like the EU Copyright Directive and the Terrorist Content Regulation, but it seems like every day there’s something new and more ridiculous — and the latest may be coming from the Court of Justice of the EU (CJEU), which frequently is a bulwark against overreaching laws regarding the internet, but sometimes (too frequently, unfortunately) gets things really, really wrong (saying the “Right to be Forgotten” applied to search engines was one terrible example).

And now, the CJEU’s Advocate General has issued a recommendation in a new case that would be hugely problematic for the idea of a global open internet that isn’t weighted down with censorship filters. The Advocate General’s recommendations are just that: recommendations for the CJEU to consider before making a final ruling. However, as we’ve noted in the past, the CJEU frequently accepts the AG’s recommendations. Not always. But frequently.

The case here involves a an attempt to get Facebook to delete critical information of a politician in Austria under Austrian law. In the US, of course, social media companies are not required to delete such information. The content itself is usually protected by the 1st Amendment, and the platforms are then protected by Section 230 of the Communications Decency Act that prevents them from being liable, even if the content in question does violate the law (though, importantly, most platforms will still remove such content if it’s been determined by a court to violate the law).

In the EU, the intermediary liability scheme is significantly weaker. Under the E-Commerce Directive’s rules, there is an exemption of liability, but it’s much more similar to the DMCA’s safe harbors for copyright-infringing material in the US. That is, the liability exemptions only occur if the platform doesn’t have knowledge of the “illegal activity” and if they do get such knowledge, they need to remove the content. There is also a prohibition on a “general monitoring” requirement (i.e., filters).

The case at hand involved someone on Facebook posting a link to an article about an Austrian politician, Eva Glawischnig-Piesczek, and added some comments along with the link. Specifically:

That user also published, in connection with that article, an accompanying disparaging comment about the applicant accusing her of being a ?lousy traitor of the people?, a ?corrupt oaf? and a member of a ?fascist party?.

In the US — some silly lawsuits notwithstanding — such statements would be clearly protected by the 1st Amendment. Apparently not so much in Austria. But then there’s the question of Facebook’s responsibility.

An Austrian court ordered Facebook to remove the content, which it complied with by removing access to anyone in Austria. The original demand was also that Facebook be required to prevent “equivalent content” from appearing as well. On appeal, a court denied Facebook’s request that it only had to comply in Austria, and also said that such “equivalent content” could only be limited to cases where someone then alerted Facebook to the “equivalent content” being posted (and, thus, not a general monitoring requirement).

From there, the case went to the CJEU, who was asked to determine if such blocking needs to be global and how should the “equivalent content” question be handled.

And, then, basically everything goes off the rails. First up, the Advocate General, seems to think that — like many misguided folks concerning CDA 230 — there’s some sort of “neutrality” requirement for internet platforms, and that doing any sort of monitoring might lose their safe harbors for no longer being neutral. This is mind-blowingly stupid.

It should be observed that Article 15(1) of Directive 2000/31 prohibits Member States from imposing a general obligation on, among others, providers of services whose activity consists in storing information to monitor the information which they store or a general obligation actively to seek facts or circumstances indicating illegal activity. Furthermore, it is apparent from the case-law that that provision precludes, in particular, a host provider whose conduct is limited to that of an intermediary service provider from being ordered to monitor all (9) or virtually all (10) of the data of all users of its service in order to prevent any future infringement.

If, contrary to that provision, a Member State were able, in the context of an injunction, to impose a general monitoring obligation on a host provider, it cannot be precluded that the latter might well lose the status of intermediary service provider and the immunity that goes with it. In fact, the role of a host provider carrying out general monitoring would no longer be neutral. The activity of that host provider would not retain its technical, automatic and passive nature, which would imply that that host provider would be aware of the information stored and would monitor it.

Say what now? It’s right that general monitoring is not required (and explicitly rejected) in the law, but the corollary that deciding to do general monitoring wipes out your safe harbors is… crazy. Here, the AG is basically saying we can’t have a general monitoring obligation (good) because that would overturn the requirement of platforms to be neutral (crazy):

Admittedly, Article 14(1)(a) of Directive 2000/31 makes the liability of an intermediary service provider subject to actual knowledge of the illegal activity or information. However, having regard to a general monitoring obligation, the illegal nature of any activity or information might be considered to be automatically brought to the knowledge of that intermediary service provider and the latter would have to remove the information or disable access to it without having been aware of its illegal content. (11) Consequently, the logic or relative immunity from liability for the information stored by an intermediary service provider would be systematically overturned, which would undermine the practical effect of Article 14(1) of Directive 2000/31.

In short, the role of a host provider carrying out such general monitoring would no longer be neutral, since the activity of that host provider would no longer retain its technical, automatic and passive nature, which would imply that the host provider would be aware of the information stored and would monitor that information. Consequently, the implementation of a general monitoring obligation, imposed on a host provider in the context of an injunction authorised, prima facie, under Article 14(3) of Directive 2000/31, could render Article 14 of that directive inapplicable to that host provider.

I thus infer from a reading of Article 14(3) in conjunction with Article 15(1) of Directive 2000/31 that an obligation imposed on an intermediary service provider in the context of an injunction cannot have the consequence that, by reference to all or virtually all of the information stored, the role of that intermediary service provider is no longer neutral in the sense described in the preceding point.

So the AG comes to a good result through horrifically bad reasoning.

However, while rejecting general monitoring, the AG then goes on to talk about why more specific monitoring and censorship is probably just fine and dandy, with a somewhat odd aside about how the “duration” of the monitoring can make it okay. However, the key point is that the AG has no problem with saying, once something is deemed “infringing,” that it can be a requirement on the internet platform to have to remove new instances of the same content:

In fact, as is clear from my analysis, a host provider may be ordered to prevent any further infringement of the same type and by the same recipient of an information society service. (24) Such a situation does indeed represent a specific case of an infringement that has actually been identified, so that the obligation to identify, among the information originating from a single user, the information identical to that characterised as illegal does not constitute a general monitoring obligation.

To my mind, the same applies with regard to information identical to the information characterised as illegal which is disseminated by other users. I am aware of the fact that this reasoning has the effect that the personal scope of a monitoring obligation encompasses every user and, accordingly, all the information disseminated via a platform.

Nonetheless, an obligation to seek and identify information identical to the information that has been characterised as illegal by the court seised is always targeted at the specific case of an infringement. In addition, the present case relates to an obligation imposed in the context of an interlocutory order, which is effective until the proceedings are definitively closed. Thus, such an obligation imposed on a host provider is, by the nature of things, limited in time.

And then, based on nothing at all, the AG pulls out the “magic software will make this work” reasoning, insisting that software tools will make sure that the right content is properly censored:

Furthermore, the reproduction of the same content by any user of a social network platform seems to me, as a general rule, to be capable of being detected with the help of software tools, without the host provider being obliged to employ active non-automatic filtering of all the information disseminated via its platform.

This statement… is just wrong? First off, it acts as if using software to scan for the same content is somehow not a filter. But it is. And then it shows a real misunderstanding about the effectiveness of filters (and the ability of some to trick filters). And there’s no mention of false positives. I mean, in this case here, a politician was called a corrupt oaf. How should Facebook be forced to block that. Is any use of the phrase “corrupt oaf” now blocked? Perhaps it would have to be “corrupt oaf” and the politician, Eva Glawischnig-Piesczek, that need to be together to be blocked. But, in that case, does it mean that this article itself cannot be posted on Facebook? So many questions…

The AG then insists that somehow this isn’t too burdensome (based on what, exactly?) and seems to make the mistake of many non-technical people, who think that filters are (a) much better than they are, and (b) not dealing with significant gray areas all the time.

First of all, seeking and identifying information identical to that which has been characterised as illegal by a court seised does not require sophisticated techniques that might represent an extraordinary burden.

And, I mean, perhaps that’s true for Facebook — but it certainly could represent a much bigger burden for lots of other, smaller providers. Like, us, for example.

Hilariously, as soon as the AG is done saying the filtering is easy, the recommendation notes that (oh right!) context may be important:

Last, such an obligation respects internet users? fundamental right to freedom of expression and information, guaranteed in Article 11 of the Charter, in so far as the protection of that freedom need not necessarily be ensured absolutely, but must be weighed against the protection of other fundamental rights. As regards the information identical to the information that was characterised as illegal, it consists, prima facie and as a general rule, in repetitions of an infringement actually characterised as illegal. Those repetitions should be characterised in the same way, although such characterisation may be nuanced by reference, in particular, to the context of what is alleged to be an illegal statement.

Next up is the question of blocking “equivalent content.” The AG, properly notes that determining what is, and what is not, “equivalent” represents quite a challenge — and at least seeks to limit what may be ordered to be blocked, saying that it should only apply to content from the same user, and that any injunction be quite specific in what needs to be blocked:

I propose that the answer to the first and second questions, in so far as they relate to the personal scope and the material scope of a monitoring obligation, should be that Article 15(1) of Directive 2000/31 must be interpreted as meaning that it does not preclude a host provider operating a social network platform from being ordered, in the context of an injunction, to seek and identify, among all the information disseminated by users of that platform, the information identical to the information that was characterised as illegal by a court that has issued that injunction. In the context of such an injunction, a host provider may be ordered to seek and identify the information equivalent to that characterised as illegal only among the information disseminated by the user who disseminated that illegal information. A court adjudicating on the removal of such equivalent information must ensure that the effects of its injunction are clear, precise and foreseeable. In doing so, it must weigh up the fundamental rights involved and take account of the principle of proportionality.

Then, finally, it gets to the question of global blocking — and basically says that nothing in EU law prevents a member state, such as Austria, from ordering global blocking, and therefore, that it can do so — but that local state courts should consider the consequences of ordering such global takedowns.

… as regards the territorial scope of a removal obligation imposed on a host provider in the context of an injunction, it should be considered that that obligation is not regulated either by Article 15(1) of Directive 2000/31 or by any other provision of that directive and that that provision therefore does not preclude that host provider from being ordered to remove worldwide information disseminated via a social network platform. Nor is that territorial scope regulated by EU law, since in the present case the applicant?s action is not based on EU law.

Regarding the consequences:

To conclude, it follows from the foregoing considerations that the court of a Member State may, in theory, adjudicate on the removal worldwide of information disseminated via the internet. However, owing to the differences between, on the one hand, national laws and, on the other, the protection of the private life and personality rights provided for in those laws, and in order to respect the widely recognised fundamental rights, such a court must, rather, adopt an approach of self-limitation. Therefore, in the interest of international comity, (51) to which the Portuguese Government refers, that court should, as far as possible, limit the extraterritorial effects of its junctions concerning harm to private life and personality rights. (52) The implementation of a removal obligation should not go beyond what is necessary to achieve the protection of the injured person. Thus, instead of removing the content, that court might, in an appropriate case, order that access to that information be disabled with the help of geo-blocking.

That is a wholly unsatisfying answer, given that we all know how little many governments think about “self-limitation” when it comes to censoring critics globally.

And now we have to wait to see what the court says. Hopefully it does not follow these recommendations. As intermediary liability expert Daphne Keller from Stanford notes, there are some serious procedural problems with how all of this shakes out. In particular, because of the nature of the CJEU, they will only hear from some of the parties whose rights are at stake (a lightly edited quote of her tweetstorm):

The process problems are: (1) National courts don?t have to develop a strong factual record before referring the case to the CJEU, and (2) Once cases get to the CJEU, experts and public interest advocates can?t intervene to explain the missing info. That?s doubly problematic when ? as in every intermediary liability case ? the court hears only from (1) the person harmed by online expression and (2) the platform but NOT (3) the users whose rights to seek and impart information are at stake. That’s an imbalanced set of inputs. On the massively important question of how filters work, the AG is left to triangulate between what plaintiff says, what Facebook says, and what some government briefs say. He uses those sources to make assumptions about everything from technical feasibility to costs.

And, in this case in particular, that leads to some bizarre results — including quoting a fictional movie as evidence.

In the absence of other factual sources, he also just gives up and quotes from a fictional movie ? The Social Network — about the permanence of online info.

That, in particular, is most problematic here. It is literally the first line of the AG’s opinion:

The internet?s not written in pencil, it?s written in ink, says a character in an American film released in 2010. I am referring here, and it is no coincidence, to the film The Social Network.

But a quote in a film that is arguably not even true, seems like an incredibly weak basis for a law that fundamentally could lead to massive global censorship filters across the internet. Again, one hopes that the CJEU goes in a different direction, but I wouldn’t hold my breath.

Filed Under: advocate general, cjeu, corrupt oaf, defamation, e-commerce directive, eu, eva glawischnig-piesczek, filters, global censorship, intermediary liability, jrusidiction, monitoring
Companies: facebook

Australian Federal Police Raid Journalist's Home Over Publication Of Leaked Documents

Free Speech

from the cool-cool-cool dept

The Australian government is using its considerable national security powers to discourage local journalists from reporting unflattering news. Publishing leaked documents will get your home raided by the feds in Australia. (Wait, I’m getting something in my earpiece… it appears this is not just an Australian phenomenon.)

The Australian federal police have raided the home of News Corp Australia journalist Annika Smethurst investigating the publication of a leaked plan to allow government spying on Australians.

On Tuesday police executed a warrant investigating the “alleged publishing of information classified as an official secret” which they said had the potential to undermine Australia’s national security.

Her employer called it a “dangerous act of intimidation,” which is exactly what it is. The government may be claiming this is about protecting the nation, but if it has a problem with leakers, it should maybe take a look at its leakers first, rather than punish journalists for engaging in journalism. Or — and I’m just throwing this out there — maybe the government shouldn’t engage in secret domestic surveillance or other acts that would provoke public outrage if they were exposed.

Unfortunately, Australia really doesn’t have a shield law to protect journalists, leaving them only with the dubious option of defending “unauthorized disclosures” as being made in the public interest. Even if nothing comes of this, the message has been sent: publishing leaked documents will bring the heat — the kind of heat that leaves a chill everywhere it’s been.

The Australian government firmly — and with the force of law — believes anything it thinks should be secret should stay a secret. Smethurst wasn’t the only journalist targeted by the government for reporting on supposed secrets.

Just hours after the Australian Federal Police raided the home of high-profile journalist Annika Smethurst, broadcaster Ben Fordham has revealed he’s also being targeted for his reporting.

The 2GB Drive presenter and Sky News contributor revealed he was the subject of a probe over his story yesterday about six asylum seeker boats attempting to reach Australia.

An hour after his report went to air yesterday, his producer was contacted by an official from the Department of Home Affairs to advise the material was “highly confidential”.

“In other words, we weren’t supposed to know it,” Fordham told listeners today.

Right now, the investigation is the DHA’s. But it has already informed Sky News it will likely be turning this over to the federal police as a criminal investigation. That’s probably because Fordham has refused to cooperate with the Home Affairs investigation and name his source. I’m sure the AFP feels it can suss out the leak source by doing what it did to the News Corp journalist: raid their home and take all of their electronics.

The Australian government is pretending this is normal. The Prime Minister has refused to offer a coherent comment and the usual things are being said about national security by the agencies involved in these investigations. But the truth of the matter is this is not normal. According to the New York Times’ report on the raid, this is the first time in more than ten years the Australian government has gone after a journalist for publishing sensitive documents.

The AFP and DHA want it to appear normal, but it isn’t. They know it. And they’re counting on this combination of breezy national security platitudes and heavy-handed tactics to discourage further reporting on things the government would rather citizens remained blissfully unaware of.

Filed Under: annika smethurst, australia, ben fordham, chilling effects, journalism, raids, surveillance

Sheriff's Deputy Sued After Arresting Man For Criticizing Him On Facebook

Free Speech

from the serve,-protect,-bruise-easily... dept

A good way to get yourself sued if you’re a law enforcement officer is to treat a heated Facebook post like it’s an actual crime. Law enforcement officers remain the most delicate of snowflakes, unable to let a citizens blow off verbal steam without effecting arrests for contempt of cop. This case involves digital contempt, but it was treated as though the plaintiff was up right in the deputy’s face and screaming.

Plaintiff Jon Goldsmith was attending an outdoor festival in Corning, Iowa when he saw deputies pull over Ed Avila for a supposedly faulty brake light. This turned out to be pretextual stop, as stops for minor traffic violations often are. This is from Goldsmith’s lawsuit [PDF], filed with the assistance of the ACLU of Iowa. (I will preserve the misspelling of brake light which, unfortunately, is found throughout the lawsuit.)

After informing Avila of the reason for the stop and asking for everyone’s identification, Dorsey informed Avila he would be having his partner, Deputy Evan Ruse, write a warning ticket to fix the break light.

Dorsey then told Avila that he would be running his K9 or “drug dog” around Avila’s vehicle.

Goldsmith watched as Dorsey tapped the bed of Avila’s pick-up right before his K9 jumped into the bed.

Dorsey informed Avila that the K9 hit on the truck.

At this point, Dorsey ordered everyone out of the vehicle and proceeded to pat everyone down and search the individuals.

Goldsmith then observed Dorsey make Avila and his passengers stand on the side of the road while Dorsey searched the vehicle.

Dorsey discovered no contraband or anything else of note in Avila’s vehicle but during the search, Dorsey kept uttering that he was getting a whiff of something.

At that point, Dorsey and Ruse gave Avila a ticket for the break light and told him that he was free to go.

As they began to walk towards the street festival, Goldsmith observed Dorsey and Ruse walk across the street and for reasons unknown and questionable to Goldsmith, Dorsey then body slammed a gentleman named Mike Arthur to the ground.

The fishing expedition that occurred at the Avila traffic stop — along with the perceived abuse of another witness of the stop — angered Goldsmith. As most of do, he turned to social media to express his feelings. He commented on the Adams County Sheriff’s Office’s post of Mike Arthur’s mugshot with this:

Ya when they run the drug dog round said car/truck and they make a fake claim the dog hit yes he hit after you tap where you want him to jump on then call it a hit and NOTHING shows up and they look like total fucking lying POS they/he gets pissed walks across main street and body slams THIS bystander that was giving them a hard time guess they dont have any balls to take shit talk they get BUTTHURT YES YOU DORSEY you fucking pile of shit hope this guy hires George and sues the county and you will be the 1st to go Dumbass Dorsey WHY you run the dog getting pulled over for so called fake claim you call a cargo light a brake light you STUPID sum bitch so why run the dog for a traffic stop of light out? THAT IS FUCKING BULLSHIT what reason? when you get shit canned i ll hire ya to walk my dog and PICK up his shit

It may lack eloquence but it does drive Goldsmith’s point home effectively: the traffic stop, the drug dog, the attack on Mike Arthur… all bullshit. And every word of this Deputy Dorsey-aimed rant is protected speech. And it’s the best kind of protected speech: criticism of the government as personified by the Adams County officer.

Neither Deputy Dorsey nor Sergeant Paul Hogan saw it that way. Unaware of the contours of the First Amendment — or perhaps just not caring — they filed a criminal complaint against Goldsmith for third-degree harassment.

Sergeant Hogan’s sworn statement in defense of this bullshit charge is inadvertently hilarious, as all-caps, verbatim recountings of personal slights often are:

ON 7-29-18 AT APPROXIMATELY 0330 JON GOLDSMITH MADE A THREATENING POST ON FACEBOOK IN WHICH HE SINGLED OUT CORY DORSEY MULTIPLE TIMES. IN THE FACEBOOK POST GOLDSMITH REFERRED TO DORSEY AS A “FUCKING PILE OF SHIT.” GOLDSMITH ALSO REFERED TO DORSEY AS A “STUPID SUM BITCH.” GOLDSMITH ENDED THE FACEBOOK POST WITH “WHEN YOU GET SHIT CANNED I’LL HIRE YOU TO WALK MY DOG AND PICK UP HIS SHIT.”

Unfortunately for these officers, the court and the plaintiff know the law better than they do. As Goldsmith’s lawsuit points out, there’s a case directly on point in that state’s top court saying this sort of criticism is protected by the First Amendment.

On September 21, 2018, Attorney Mailander filed a Motion to Dismiss the charges against Goldsmith as violative of the First Amendment.

Among other things, Mailander’s Motion cited to the case State v. Fratzke, 446 N.W.2d 781 (Iowa 1989), directly on point, in which the Iowa Supreme Court held that the state could not justify the same harassment charge Goldsmith was charged with against a motorist who wrote a letter to a highway patrolman who had stopped him for speeding, based on the letter’s statement that the officer was a “liar,” a “thief disguised as a protector,” that the arrest was “legalized highway robbery,” that the officer “just enjoys stealing people’s money so he can show everyone what a red-necked mother-fucker he is,” and expressing the letter-writer’s hope that the officer would “have an early and particularly painful death hopefully at the side of the road somewhere he’s robbing someone else.” As the Court explained, “[o]ur Constitution does not permit government officials to put their critics, no matter how annoying, in jail.”

The court agreed with Goldsmith’s motion and dismissed the charge. But some damage had already been done. After the charge was filed against him, Goldsmith emailed a screenshot of the post to his wife, deleted his post, and deactivated his Facebook account. He has steered clear of Corning, Iowa where the traffic stop he criticized took place, and saw a physician who noted Goldsmith’s anxiety and increased blood pressure.

The lawsuit also points out the Adams County Sheriff’s Office seems particularly susceptible to “mistaking” criticism for criminal acts. Deputies have arrested people for cursing at them and giving them the finger.

The lawsuit alleges false arrest and First Amendment retaliation. It seems pretty clear the deputies wanted to punish Goldsmith for lighting them up on Facebook and dug around until they found an abusable law to use against him. Unfortunately, Iowa’s harassment statute is pretty damn abusable:

Communicates with another by telephone, telegraph, writing, or via electronic communication without legitimate purpose and in a manner likely to cause the other person annoyance or harm.

So, there’s a couple of bars Goldsmith will have to clear. The first is not specific to Iowa. Courts have held for years that law enforcement officers aren’t expected to be experts in the laws they’re enforcing. Yeah, it makes very little sense, but I guess we don’t want our officers ruminating over appellate level splits on edge cases during “tense, uncertain, and rapidly-evolving” situations.

Then we have the law itself, which lends itself to the reading that people can be arrested simply for “annoying” law enforcement officers and Goldsmith’s Facebook post certainly fits the common definition of annoying.

The wild card is the court and whether it will recognize this for the retaliation it is. Deputies were briefly publicly shamed for turning a traffic stop into a roadside fishing expedition and — instead of doing nothing — they did this.

Filed Under: adams county, adams county sheriff's department, arrest, corning, cory dorsey, ed avila, evan ruse, free speech, iowa, jon goldsmith, law enforcement, paul hogan

Shallow Fakes: Why Facebook Was Right Not To Delete The Doctored Video Of Nancy Pelosi

(Mis)Uses of Technology

from the defending-free-speech dept

We live in a Manichean political world where every person and institution is said to be either good or evil. Facebook used to be in the good column; since November 2016, they are listed among the evil ones, oddly by both left and right. The truth: Facebook is a tremendously successful and innovative business that nevertheless makes mistakes. But beyond making its users happy, Facebook also does good. By defending free speech, for example, at a difficult time.

The case may be familiar to you. (The fact that the case is likely familiar to you is important as we shall see). Recently someone created a distorted video of House leader Nancy Pelosi.  Many thought the distortions suggested Pelosi was drunk. She was not. The video warped her image for political purposes (or perhaps, just for fun). More bluntly, the speech in question – the edited video – was a lie.

The question is not whether political speakers lie. They do and always have. Of course, everyone believes their team upholds truth while the other team lies. As Morrisey sang, “Everyone lies, nobody minds.” Well, everyone minds the other team’s lies and somehow ignores their own.

Political speech comprises lies, truth, and much uncertainty. Who should decide which speech falls into which category? Not the elected officials and unelected bureaucrats we call “the government.” The First Amendment and the courts preclude the government from determining truth (and lies). Elected officials want to be popular and win re-election; speech critical of them works against attaining those goals. Elected officials tend to see such criticism as “lies.” I would if I were an elected official. So would you. The incentives are terrible. Censorship would be a natural response. Hence we have a First Amendment, an unnatural state-of-affairs undergirded in the United States by fifty years of tradition, that is, of judicial doctrine.

So who separates truth and lies (and the in-between) in our unnatural state of free speech? Listeners, citizens, and voters. That’s our democratic faith, or our liberal faith, or whatever you want to call it. It’s a real source of national pride, our unnatural state of speaking freely. It’s a foundation of any American nationalism worth honoring.

But people do lie, and the lies can have terrible consequences. True enough. But our liberal faith and our unnatural state have an answer to lies: more speech. Consider the Pelosi incident. More speech revealed the lie in the video almost immediately. It is true that humans are lazy or uninterested and ignore the revelations of “more speech.” Or they seek only information that confirms their hatred and prejudices. In other words, listeners, citizens and voters often fail to live up to the demands of our liberal democratic faith. To remedy that failure shall we thus turn to “truth seeking” politicians who are too often thin-skinned and ambitious?

With social media we have a third player involved, the companies (above all, Facebook) that own and oversee these platforms for speech. The companies have a right to, and sometimes do, suppress speech on their platforms. The answer to their mistakes in this regard is… more speech. But the companies also rise to the occasion at times by defending our democratic faith in free speech. In the wake of the Pelosi incident, Facebook decided to leave the Pelosi video up on its platform. Monika Bickert, their head of content moderation at Facebook, affirmed that those who heard and saw the video should decide its truth or falsity. The alternative would have been Facebook taking down the video in the name of truth (and against lies). There are many problems with that alternative, not least Facebook would find itself fighting with, or subordinate to powerful politicians like Ms. Pelosi. So the company left the ultimate judgment to citizens and voters. They followed, in short, the American way.

But many people apparently do not like leaving judgments about truth to “more speech” and to Americans. Bickert was pilloried. For her part, Ms. Pellosi said Facebook acted as “willing enablers of the Russian interference in [the 2016] election.” To be blunt again, she accused Facebook of treason.

But Monika Bickert was the real American here, at least judging by our long tradition of free speech and respect for the intelligence of citizens and voters. That tradition is under fire. Perhaps it always has been. But we might wonder if our political class is abandoning freedom of speech.

Many on the right have decided that Carl Schmitt is correct when he wrote “politics is constituted by the distinction between friends and enemies.” The tech firms are perfect “enemies” for the populist right: filled with “woke” young people, located in California, and using technology few understand. The left has been abandoning free speech for a long time because “the corporations started winning” First Amendment cases. They also often judge constitutional rules by their effects on friends and enemies. In the name of that harsh doctrine, both right and left are abandoning the older faith that Americans have the right and the ability to discern truth from lies.

But there are still genuine conservatives and real liberals out there who believe in free speech. Last week Facebook paid a hefty price to be their friend.

John Samples is a Vice President at the Cato Institute

Filed Under: content moderation, free speech, nancy pelosi, shallow fakes
Companies: facebook

Supreme Court OKs Retaliatory Arrests For Engaging In Protected Speech

Free Speech

from the a-police-state-is-a-team-effort dept

The Supreme Court has declared it’s cool with cops engaging in retaliatory arrests… just as long as they have the probable cause to do so. Given the thousands of obscure laws we’ve been cursed with by legislators, most law enforcement officers will be able to find some way to shut up someone by putting them in cuffs. (Whatever they’re wrong about can be salvaged by the good faith exception.)

In this case, plaintiff Russell Bartlett was arrested after not talking to police and telling other winter festival attendees to not talk to the police. The officer who arrested Bartlett claimed Bartlett was drunk and disorderly, hence the supposedly-justified arrest. Here’s the background, as summarized in the Supreme Court’s opinion [PDF]:

Respondent Russell Bartlett was arrested by police officers Luis Nieves and Bryce Weight for disorderly conduct and resisting arrest during “Arctic Man,” a raucous winter sports festival held in a remote part of Alaska. According to Sergeant Nieves, he was speaking with a group of attendees when a seemingly intoxicated Bartlett started shouting at them not to talk to the police. When Nieves approached him, Bartlett began yelling at the officer to leave. Rather than escalate the situation, Nieves left. Bartlett disputes that account, claiming that he was not drunk at that time and did not yell at Nieves. Minutes later, Trooper Weight says, Bartlett approached him in an aggressive manner while he was questioning a minor, stood between Weight and the teenager, and yelled with slurred speech that Weight should not speak with the minor. When Bartlett stepped toward Weight, the officer pushed him back. Nieves saw the confrontation and initiated an arrest. When Bartlett was slow to comply, the officers forced him to the ground. Bartlett denies being aggressive and claims that he was slow to comply because of a back injury. After he was handcuffed, Bartlett claims that Nieves said “bet you wish you would have talked to me now.”

In effect, Trooper Nieves was arresting Bartlett for talking about not talking to the police and, I guess, for not talking to Nieves when Bartlett was telling festival attendees to not talk to Trooper Nieves. Trooper Weight is a boxing tier I’m not familiar with.

The Ninth Circuit Appeals Court agreed with Bartlett, finding that probable cause does not excuse retaliatory arrests. The government protested, stating the opposite. Unfortunately, the Supreme Court agrees with the government insistence that retaliatory arrests are excusable with probable cause. In addition, it says that plaintiffs in these cases bear the burden of proving other people haven’t been arrested if they plan to make assertions about a law enforcement officer’s actions.

Because States today permit warrantless misdemeanor arrests for minor criminal offenses in a wide range of situations—whereas such arrests were privileged only in limited circumstances when §1983 was adopted—a narrow qualification is warranted for circumstances where officers have probable cause to make arrests, but typically exercise their discretion not to do so. An unyielding requirement to show the absence of probable cause in such cases could pose “a risk that some police officers may exploit the arrest power as a means of suppressing speech.” Lozman, 585 U. S., at ___. Thus, the no-probable-cause requirement should not apply when a plaintiff presents objective evidence that he was arrested when otherwise similarly situated individuals not engaged in the same sort of protected speech had not been.

So… bring data, I guess.

There’s a whole lot more to this opinion than the majority’s. There’s plenty of dissent. Justice Gorsuch both concurs and dissents, but gets right to the point when it comes to the legal ramifications of this ruling.

Mr. Bartlett contends that the officers’ retaliation against his First Amendment protected speech entitles him to damages under 42 U. S. C. §1983. For their part, the troopers insist that the fact they had probable cause to arrest Mr. Bartlett for some crime, or really any crime, should be enough to shield them from liability.

That is what the government argued. And that’s exactly what was granted: literally any arrestable offense trumps citizens’ First Amendment protections. This works out all too well for the government.

As Frank Zappa said, “The United States is a nation of laws, badly written and randomly enforced.” Here’s how Gorsuch puts it:

Both sides accept that an officer violates the First Amendment when he arrests an individual in retaliation for his protected speech. They seem to agree, too, that the presence of probable cause does not undo that violation or erase its significance. And for good reason. History shows that governments sometimes seek to regulate our lives finely, acutely, thoroughly, and exhaustively. In our own time and place, criminal laws have grown so exuberantly and come to cover so much previously innocent conduct that almost anyone can be arrested for something. If the state could use these laws not for their intended purposes but to silence those who voice unpopular ideas, little would be left of our First Amendment liberties, and little would separate us from the tyrannies of the past or the malignant fiefdoms of our own age.

Gorsuch goes on to point out the statute governing lawsuits like these (§1983) — civil suits alleging violations of rights by government employees — says nothing about probable cause. All it says is that civil servants can be held personally liable for depriving citizens of “any rights, privileges, or immunities secured by the Constitution.” Certainly, probable cause for an arrest might defeat Fourth Amendment claims since that’s why there’s a probable cause requirement for arrests in the first place, but it shouldn’t be enough to instantly defeat claims of First Amendment retaliation. Applying this probable cause tests allows officers to get away with something they shouldn’t.

The point of this kind of claim isn’t to guard against officers who lack lawful authority to make an arrest. Rather, it’s to guard against officers who abuse their authority by making an otherwise lawful arrest for an unconstitutional reason.

Justice Ginsburg’s partial dissent also says this country has too many laws that can be too easily abused to establish precedent that any old probable cause will do.

Given the array of laws proscribing, e.g., breach of the peace, disorderly conduct, obstructing public ways, failure to comply with a peace officer’s instruction, and loitering, police may justify an arrest as based on probable cause when the arrest was in fact prompted by a retaliatory motive. If failure to show lack of probable cause defeats an action under 42 U. S. C. §1983, only entirely baseless arrests will be checked.

Sotomayor’s dissent aligns itself with Gorsuch and the majority’s mysterious decision to rewrite §1983 on the fly to add probable cause to the long list of ways government employees can dodge being held responsible for rights violations. Had the court restrained itself to a narrow decision and not placed an additional evidentiary burden on plaintiffs, this might have been OK. But it didn’t and in reaching this broader conclusion, it has opened the door for SCOTUS-sanctioned abuse.

Were it simply an unorthodox solution to an illusory problem, the standard announced today would be benign. But by rejecting direct evidence of unconstitutional motives in favor of more convoluted comparative proof, the majority’s standard proposes to ration First Amendment protection in an illogical manner. And those arbitrary legal results in turn will breed opportunities for the rare ill-intentioned officer to violate the First Amendment without consequence—and, in some cases, openly and unabashedly. These are costs the Court should not tolerate.

The standard the court has erected demands plaintiffs to provide evidence they are unlikely to ever obtain.

[T]he majority suggests that comparison-based evidence is the sole gateway through the probable-cause barrier that it otherwise erects. Such evidence can be prohibitively difficult to come by in other selective-enforcement contexts, and it may be even harder for retaliatory arrest plaintiffs to muster. After all, while records of arrests and prosecutions can be hard to obtain, it will be harder still to identify arrests that never happened. And unlike race, gender, or other protected characteristics, speech is not typically sorted into statistical buckets that are susceptible of ready categorization and comparison.

The impossibility of meeting this evidentiary bar, along with the broader proclamation that probable cause beats the First Amendment in nearly every situation, pretty much dead-ends future retaliatory arrest lawsuits. Cops may not be the best students of the law, but they’re pretty quick to pick up on legal declarations that excuse abuses of their power.

Whatever momentum has been gained by legal decisions supporting the right of citizens to film police officers has just been undercut. We’ve already seen years of bullshit arrests for filming cops. This decision says officers are free to continue violating First Amendment rights if there’s any conceivable law someone might be breaking while engaging in “protected” speech. We have too many laws on the books to give law enforcement officers this much deference in enforcing them, especially when Constitutional rights are on the line.

Filed Under: 1st amendment, 4th amendment, neil gorsuch, probable cause, retaliatory arrests, russell bartlett, sonia sotomayor, supreme court

And Now The Prime Minister Of Canada Is Threatening To Fine Social Media Companies Over 'Fake News'

Free Speech

from the please-stop dept

Oh good. Now Canada wants in on the “fake news” action.

Canada is introducing a digital charter that will impose “meaningful financial consequences” on tech companies if they don’t reign in misinformation on their platforms, Prime Minister Justin Trudeau said on Thursday.

Trudeau made the announcement during a speech in Paris at the Viva Technology conference. He said that social media companies have “failed their users” and announced the Canada will establish a new digital charter aimed at universal access, countering online extremism and misinformation, and transparency.

Not included in this announcement:

• What “misinformation” means in this context
• How fines will be handed out
• What collateral damage this will cause to free expression
• Why any of this is necessary

Apparently, this all flows from the Christchurch shooting in New Zealand. On top of “eradicating terrorist and violent content… once and for all,” the Canadian government will apparently be punishing tech companies for failing to eradicate anything the Canadian government believes isn’t real. The phrase “meaningful financial consequences” was used.

Perhaps the biggest misconception government officials hold about social media platforms is that moderation is easy. They find a few examples of stuff they think should be banned and they assume anyone can do the same thing, even when dealing with millions of uploads a minute. They also believe moderators should instinctively recognize this content immediately, no matter the context, and act to remove it before it’s seen by others.

Something as nebulous as “fake news” is going to be a lot harder to moderate than “terrorist and violent content.” Even the latter has its own issues, as much of what’s considered “terrorist and violent” can also be newsworthy or crucial to law enforcement investigations.

“Fake news” tends to be whatever top government officials declare it is. If that’s all it takes, tech companies will be fined as often as grandstanders open their mouths. As we’ve seen here in the US, President Trump can’t go more than a day without calling someone or something “fake news.” If that same hostility towards the press is shown in Canada — and it’s not inconceivable someone like Trump could become Prime Minister — tech companies will have two choices: pay fines constantly or subject their users to a ton of moderation collateral damage.

This won’t make things better for Canadians. And it won’t do them any favors when it comes to them expressing themselves online. Demanding more moderation using meaningless buzzwords is a great way to open up a portal to moderation hell. If the Canadian government can find a better approach to tackling “fake news” than perpetually fining social media companies, it probably should excuse itself from the discussion.

Filed Under: canada, disinformation, fake news, fines, free speech, justin trudeau, social media