The US's media censor voted to end rules protecting an open internet on Thursday, a move critics warn will hand control of the future of the web to cable and telecoms companies.
At a packed meeting of the Federal Communications Commission (FCC) in Washington, commissioners voted three to two to dismantle the net neutrality rules that prevent internet service providers (ISPs) from charging websites more for delivering
certain services or blocking others should they, for example, compete with services the cable company also offers.
FCC commissioner Mignon Clyburn, a Democrat, denounced the move. I dissent because I am among the millions outraged, outraged because the FCC pulls its own teeth, abdicating responsibility to protect the nation's broadband consumers, she said.
Fellow Democratic commissioner Jessica Rosenworcel said the FCC had shown contempt for public opinion during the review. She called the process corrupt. As a result of today's misguided actions, our broadband providers will get extraordinary new
powers, she said.
Evan Greer, campaign director for internet activists Fight for the Future, said:
Killing net neutrality in the US will impact internet users all over the world. So many of the best ideas will be lost, squashed by the largest corporations at the expense of the global internet-using public.
Michael Cheah of Vimeo said:
ISPs probably won't immediately begin blocking content outright, given the uproar that this would provoke. What's more likely is a transition to a pay-for-play business model that will ultimately stifle startups and innovation, and lead to higher
prices and less choice for consumers.
Ignoring the millions of Americans who protested against the end of net neutrality
In recent months, millions of people have protested the FCC's plan to repeal U.S. net neutrality rules, which were put in place by the Obama administration.
However, an outpouring public outrage , critique from major tech companies, and even warnings from pioneers of the Internet, had no effect. Today the FCC voted to repeal the old rules, effectively ending net neutrality.
Under the net neutrality rules that have been in effect during recent years, ISPs were specifically prohibited from blocking, throttling, and paid prioritization of lawful traffic. In addition, Internet providers could be regulated as carriers
under Title II.
Now that these rules have been repealed, Internet providers will have more freedom to experiment with paid prioritization. Under the new guidelines, they can charge customers extra for access to some online services, or throttle certain types of
Most critics of the repeal fear that, now that the old net neutrality rules are in the trash, fast lanes for some services, and throttling for others, will become commonplace in the U.S.
This could also mean that BitTorrent traffic becomes a target once again. After all, it was Comcast's secretive BitTorrent throttling that started the broader net neutrality debate, now ten years ago.
Despite repeated distortions and biased information, as well as misguided, inaccurate attacks from detractors, our Internet service is not going to change, writes David Cohen, Comcast's Chief Diversity Officer:
We have repeatedly stated, and reiterate today, that we do not and will not block, throttle, or discriminate against lawful content.
It's worth highlighting the term lawful in the last sentence. It is by no means a promise that pirate sites won't be blocked.
Why Net Neutrality Repeal Is Extremely Bad News for Porn
Within minutes of a party-line Federal Communications Commission vote to repeal rules protecting net neutrality, at least three states announced measures to keep the rules204set up to guarantee a level playing field for internet consumers, users
and businesses204in place. New York, California and Washington quickly outlined a mixture of legal actions and legislative moves to keep net neutrality in place, which more than a dozen states expected to follow.
Whether the states can succeed in stopping the Donald Trump-era elimination of the Barack Obama-era net neutrality requirements is of special interest to adult content providers and consumers, because porn appears likely to be among the hardest
hit of all industries affected by the rollback.
Why? Because porn comprises about one third of all internet traffic, and there are an estimated 800 million pages of porn on the World Wide Web, meaning that the giant corporations that now control internet access for most Americans will envision
almost unimaginable profits to be reaped from slapping users with extra fees to access their favorite adult content.
The House Judiciary Committee is about to decide whether to approve a new version of the Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA, H.R. 1865 ), a bill that would force online platforms to police their users'
speech more closely.
The new version of FOSTA improves a deeply problematic bill, but it still represents the same fundamentally flawed approach to fighting criminal activity online. Like the earlier version of FOSTA --and like SESTA ( S. 1693 ), its sibling bill in
the Senate --the new version of FOSTA would do nothing to fight traffickers . What it would do is create more risk of criminal and civil liability for online platforms, resulting in them pushing legitimate voices offline.Closing Online Spaces
Won't End Trafficking
Automated filters can be useful as an aid to transparent, human moderation, but when they're given the final say over who can and can't speak online, innocent users are invariably pushed offline.
One of the most egregious problems with FOSTA and SESTA is the difficulty of determining whether a given posting online was created in aid of sex trafficking. Even if you can assess that a given posting is an advertisement for sex work--which can
be far from obvious--how can a platform determine whether force or coercion played a role? Under SESTA, that uncertainty would force platforms to err on the side of censorship.
SESTA supporters consistently underestimate this difficulty, even suggesting it should be trivial for web platforms to build bots that remove posts in aid of sex trafficking but keep everything else up. That's simply not true: automated filters
can be useful as an aid to transparent, human moderation, but when they're given the final say over who can and can't speak online, innocent users are invariably pushed offline .
The House Judiciary Committee appears to have attempted to sidestep this problem, but it's potentially created a larger problem in the process. That's because the new version of FOSTA isn't primarily a sex trafficking bill; it's a prostitution
bill. This bill would expand federal prostitution law such that online platforms would have to take down any posts that could potentially be in support of any sex work, regardless of whether there's any indication of force or coercion, or whether
minors were involved.
The bill includes increased penalties if a court finds that the offense constituted a violation of federal sex trafficking law, or that a platform facilitated prostitution of five or more people. As Professor Eric Goldman points out in his
excellent analysis of the bill , the threshold of five prostitutes would implicate nearly any online platform that facilitates prostitution. If a prosecutor could convince a judge that a platform had had the intent to facilitate prostitution, then
those enhanced penalties would be on the table.
It's easy to see the effect that those extreme penalties would have on online speech. The bill would push platforms to become more restrictive in their treatment of sexual speech, out of fear of criminal liability if a court found that they'd had
the intent to facilitate prostitution. Ironically, such measures would make it more difficult for law enforcement to find and stop traffickers .Section 230 Is Still Not Broken
Some supporters of SESTA and FOSTA wrongly claim that Section 230 (the law protecting online platforms from some types of liability for their users' speech) prevents any civil lawsuits against online intermediaries for user-created material that
they host. That's not true. Fair Housing Council of San Fernando Valley v. Roommates.com set a standard for when a platform loses Section 230 immunity in civil litigation --when the intermediary has contributed to the illegal nature of the
content. As the Ninth Circuit said: A website helps to develop unlawful content, and thus falls within the exception to Section 230, if it contributes materially to the alleged illegality of the conduct.
We think the authors of this new version of FOSTA attempted to acknowledge the Roommates.com line of cases that discuss when a platform will lose Section 230 immunity against a civil claim. However, courts assume that Congress doesn't write
superfluous language. With that in mind, the new FOSTA can be read to authorize civil claims against platforms for user-generated content beyond what existing case law has allowed. The bill would allow civil suits against platforms that were
responsible for the creation or development of all or part of the information or content provided through any interactive computer service.
That distinction between contributing to part of the content and materially contributing to the illegal nature of the content is an extremely important one. The former could describe routine tasks that online community managers perform every day.
It's dangerous to pass a bill that could create civil liability for the everyday work of running a discussion board or other online platform. The liability would be too high to stay in business, particularly for nonprofit and community-based
platforms.Bottom Line: SESTA and FOSTA Are the Wrong Approach
With this new version of FOSTA, House Judiciary Committee Chair Bob Goodlatte and his colleagues on the Committee have clearly attempted to narrow the types of platforms that would be liable for third-party content that reflects sex trafficking.
But a less bad bill is not the same thing as a good bill. Like SESTA, the proposed new FOSTA bill would result in platforms becoming more restrictive in how they manage their online communities. And like SESTA, it would do nothing to fight sex
Supporting bills like FOSTA and SESTA might help members of Congress score political points with their constituents, but Congress must do better. It's urgent that Congress seek real solutions to finding and apprehending sex traffickers, not
creating more censorship online.
Yesterday, the House Judiciary Committee passed a new version of H.R. 1865, a bill that would allow federal authorities the ability to prosecute sites where sex workers advertise and communicate with clients 204 even if the sexual exchange is only
alluded to and never completed.
Hawaii State Representative Sean Quinlan has advocated for self-regulation of loot boxes by the video game industry whilst also
suggesting that such games should carry a 21+ age rating.
He said that ultimately, it's best for the industry to self-police. The ideal solution would be for the game industry to stop having gambling or gambling-like mechanics in games that are marketed to kids... BUT ... he believes games
makers should be held accountable. The ESRB would need to enforce higher-grade ratings and other labels to distinguish games that rely on predatory monetization. As an example, he said that the ESRB could say that if a game has loot crates, it
gets a 21-plus rating.
The Entertainment Software Association is proving resistant, however. Their response ran along the same lines as many publishers, asserting that loot boxes are a voluntary feature and that the gamer makes the decision in regards to their purchase
Google News is limiting the reach of two Russian media outlets, RT and Sputnik, according to Alphabet executive chairman Eric Schmidt.
Schmidt said Google is de-ranking sites it claims have been spreading Russian state-sponsored propaganda. We're trying to engineer the systems to prevent it.
However, Schmidt added that he isn't in favor of censorship ...BUT.. his company also has a responsibility to stop the misinformation.
In response of teh censorship, Sputnik quoted research psychologist Robert Epstein:
Google is deciding what people see, which is very dangerous since they are legally a tech company and do not adhere to any type of editorial standards our guidelines
What we're talking about here is a means of mind control on a massive scale that there is no precedent for in human history, he said at the time. Research participants spent a much larger percentage of web browsing time visiting search results
that were higher up. According to Epstein, biased Google results could have provided an extra 2.6 million votes in support of Democratic candidate Hillary Clinton in the 2016 race.
The US establishment clearly cannot accept that US voters selected Donald Trump because of
their own failures to look after sizable chunks of the American people. Instead they prefer to believe US minds were somehow corrupted by mysterious foreign agents offering propaganda and fake news.
So now the US is coming down heavy on the Russian propaganda news channel RT. RT said this week that it had been ordered by the US Department of Justice to register as a foreign agent by Monday or have its bank accounts frozen. This 1938 reporting
law is something from the age when the Nazis were on the ascent, and that foreign agents were indeed enemies of the state with a war looming.
In response to this treatment, Russia's parliament has now begun drafting tit-for-tat measures that would place severe restrictions on some US media outlets operating in the country, in a move that looks likely to plunge US-Russia relations to a
Russian president Vladimir Putin had previously warned that Russia would take retaliatory steps if RT, formerly known as Russia Today, was targeted by US authorities.
The Russian parliamentary speaker, Vyacheslav Volodin, said MPs had been tasked with drafting amendments to Russia's own law on foreign agents to include biased media organisations that oppose Russia's political system. He said the amendments
could be approved in their third and final reading as earlier as next Friday.
Senator Alexei Pushkov, who chairs the upper house of parliament's media policy committee, said the measures would initially target CNN, the Voice of America, and Radio Liberty. However, Maria Zakharova, the Russian foreign ministry spokeswoman,
did not rule out that the updated law could also result in the expulsion of Moscow-based correspondents from US newspapers such as the New York Times and The Washington Post.
The Senate Commerce Committee just approved a slightly modified version of SESTA, the Stop Enabling Sex Traffickers Act ( S. 1693 ).
SESTA was and continues to be a deeply flawed bill. It is intended to weaken the section commonly known as CDA 230 or simply Section 230, one of the most important laws protecting free expression online . Section 230 says that for purposes of
enforcing certain laws affecting speech online, an intermediary cannot be held legally responsible for any content created by others.
It's not surprising when a trade association endorses a bill that would give its own members a massive competitive advantage.
SESTA would create an exception to Section 230 for laws related to sex trafficking, thus exposing online platforms to an immense risk of civil and criminal litigation. What that really means is that online platforms would be forced to take drastic
measures to censor their users.
Some SESTA supporters imagine that compliance with SESTA would be easy--that online platforms would simply need to use automated filters to pinpoint and remove all messages in support of sex trafficking and leave everything else untouched. But
such filters do not and cannot exist: computers aren't good at recognizing subtlety and context, and with severe penalties at stake, no rational company would trust them to .
Online platforms would have no choice but to program their filters to err on the side of removal, silencing a lot of innocent voices in the process. And remember, the first people silenced are likely to be trafficking victims themselves: it would
be a huge technical challenge to build a filter that removes sex trafficking advertisements but doesn't also censor a victim of trafficking telling her story or trying to find help.
Along with the Center for Democracy and Technology, Access Now, Engine, and many other organizations, EFF signed a letter yesterday urging the Commerce Committee to change course . We explained the silencing effect that SESTA would have on online
Pressures on intermediaries to prevent trafficking-related material from appearing on their sites would also likely drive more intermediaries to rely on automated content filtering tools, in an effort to conduct comprehensive content moderation at
scale. These tools have a notorious tendency to enact overbroad censorship, particularly when used without (expensive, time-consuming) human oversight. Speakers from marginalized groups and underrepresented populations are often the hardest hit by
such automated filtering.
It's ironic that supporters of SESTA insist that computerized filters can serve as a substitute for human moderation: the improvements we've made in filtering technologies in the past two decades would not have happened without the safety provided
by a strong Section 230, which provides legal cover for platforms that might harm users by taking down, editing or otherwise moderating their content (in addition to shielding platforms from liability for illegal user-generated content).
We find it disappointing, but not necessarily surprising, that the Internet Association has endorsed this deeply flawed bill . Its member companies--many of the largest tech companies in the world--will not feel the brunt of SESTA in the same way
as their smaller competitors. Small Internet startups don't have the resources to police every posting on their platforms, which will uniquely pressure them to censor their users--that's particularly true for nonprofit and noncommercial platforms
like the Internet Archive and Wikipedia. It's not surprising when a trade association endorses a bill that would give its own members a massive competitive advantage.
If you rely on online communities in your day-to-day life; if you believe that your right to speak matters just as much on the web as on the street; if you hate seeing sex trafficking victims used as props to advance an agenda of censorship;
please take a moment to write your members of Congress and tell them to oppose SESTA .
A trade group representing giants of Internet business from Facebook to Microsoft has just endorsed a "compromise" version of the Stop Enabling Sex Traffickers Act (SESTA), a misleadingly named bill that would be disastrous for free
speech and online communities.
Just a few hours after Senator Thune's amended version of SESTA surfaced online, the Internet Association rushed to praise the bill's sponsors for their "careful work and bipartisan collaboration." The compromise bill has all of the same
fundamental flaws as the original. Like the original, it does nothing to fight sex traffickers, but it would silence legitimate
It shouldn't really come as a surprise that the Internet Association has fallen in line to endorse SESTA. The Internet Association doesn't represent the Internet--it represents the few companies that profit the most off of Internet activity.
The Internet Association can tell itself and its members whatever it wants--that it held its ground for as long as it could despite overwhelming political opposition, that the law will motivate its members to make amazing strides in filtering
technologies--but there is one thing that it simply cannot say: that it has done something to fight sex trafficking.
A serious problem calls for serious solutions, and SESTA is not a serious solution. At the heart of the sex trafficking problem lies a complex set of economic, social, and legal issues. A
broken immigration system
and a torn safety net. A law enforcement regime that puts trafficking victims at risk for reporting their traffickers. Officers who aren't adequately trained to use the online tools at their disposal, or use them against victims. And yes, if there
are cases where online platforms themselves directly contribute to unlawful activity , it's a problem that the Department of
Justice won't use the powers Congress has already given it
. These are the factors that deserve intense deliberation and debate by lawmakers, not a hamfisted attempt to punish online communities.
The Internet Association let the Internet down today. Congress should not make the same mistake.
A federal court in California has rendered an order from the Supreme Court of Canada unenforceable. The order in question required Google to remove
a company's websites from search results globally, not just in Canada. This ruling violates US law and puts free speech at risk, the California court found.
When the Canadian company Equustek Solutions requested Google to remove competing websites claimed to be illegally using intellectual property, it refused to do so globally.
This resulted in a legal battle that came to a climax in June, when the Supreme Court of Canada ordered Google to remove a company's websites from its search results. Not just in Canada, but all over the world.
With options to appeal exhausted in Canada, Google took the case to a federal court in the US. The search engine requested an injunction to disarm the Canadian order, arguing that a worldwide blocking order violates the First Amendment.
Surprisingly, Equustek decided not to defend itself and without opposition, a California District Court sided with Google. During a hearing, Google attorney Margaret Caruso stressed that it should not be possible for foreign countries to implement
measures that run contrary to core values of the United States.
The search engine argued that the Canadian order violated Section 230 of the Communications Decency Act, which immunizes Internet services from liability for content created by third parties. With this law, Congress specifically chose not to deter
harmful online speech by imposing liability on Internet services.
In an order, signed shortly after the hearing, District Judge Edward Davila concludes that Google qualifies for Section 230 immunity in this case. As such, he rules that the Canadian Supreme Court's global blocking order goes too far.
The ruling is important in the broader scheme. If foreign courts are allowed to grant worldwide blockades, free speech could be severely hampered. Today it's a relatively unknown Canadian company, but what if the Chinese Government asked Google to
block the websites of VPN providers?
New York City has repealed a 100 year-old restriction barring dancing in bars if they do not have a cabaret license. The
City Council has voted 41-1 to repeal the Cabaret Law and the bill is expected to be signed by Mayor Bill de Blasio, who has indicated his support for the proposal. After DeBlasio signs, the repeal will go into effect within 30 days.
A spokesman for de Blasio told the New York Times, though he emphasized the need to retain some of its security requirements, including mandatory security cameras and certified security staff at larger venues.
The law, which was created during prohibition in the face of the proliferation of speakeasies, made it illegal to host musical entertainment, singing, dancing or other forms of amusement without a cabaret license. The license was available, but
the process of obtaining it was costly complicated and required approval from several agencies and only businesses in areas zoned for commercial manufacturing are eligible.
The law was used aggressively by Giuliani administration's crackdown on nightlife in the late 1990s. More recently, Andrew Muchmore, a lawyer and bar owner whose Brooklyn bar, Muchmore's, was hit with a Cabaret Law violation in 2013 after a police
officer reportedly found people swaying to music at a concert.
Facebook and Google, along with other online publishers, may soon be required in the US to disclose funding for paid political ads.
Two US senators, Amy Klobuchar and Mark Warner, proposed a bill called The Honest Ads Act to extend the funding disclosure requirements for political ads on TV, radio, and in print, to online ads. Similar legislation is expected to be introduced
in the US House of Representatives.
Under these disclosure requirements, traditional media has to produce and reveal lists identifying organizations that have bought political adverts. If the Honest Ads Act is passed into law, top online sites, from Facebook to Twitter, will fall
under these requirements, too.
The bill is an attempt to respond to Russian efforts to influence the 2016 Presidential Election through social media.
Facebook , Google , and Twitter have all said they sold politically-oriented ads to accounts linked to Russia. Facebook has characterized the ads it sold as amplifying divisive social and political messages.
If the bill becomes law, the rules would require digital platforms averaging 50 million monthly viewers to maintain a public list of political ads purchased by a person or organization spending more than $500 cumulatively on such ads, on a
per-platform basis. And it would direct digital platforms to make all reasonable efforts to prevent foreign individuals and organizations from purchasing domestic political ads.
At EFF, we see endless attempts
to misuse copyright law in order to silence content that a person dislikes. Copyright law is sadly less protective of speech than other speech regulations like defamation, so plaintiffs are motivated to find ways to turn many kinds of disputes
into issues of copyright law. Yesterday, a federal appeals court rejected one such ploy: an attempt to use copyright to get rid of a negative review.
The website Ripoff Report hosts criticism of a variety of professionals and companies, who doubtless would prefer that those critiques not exist. In order to protect platforms for speech like Ripoff Report, federal law sets a very high bar for
private litigants to collect damages or obtain censorship orders against them. The gaping exception to this protection is intellectual property claims, including copyright, for which a lesser protection applies.
One aggrieved professional named Goren (and his company) went to court to get a negative review taken down from Ripoff Report. If Goren had relied on a defamation claim alone, the strong protection of CDA 230 would protect Ripoff Report. But Goren
sought to circumvent that protection by getting a court order seizing ownership of the copyright from its author for himself, then suing Ripoff Report's owner for copyright infringement. We
filed a brief
explaining several reasons why his claims should fail, and urging the court to prevent the use of copyright as a pretense for suppressing speech.
Fortunately, the Court of Appeals for the First Circuit agreed that Ripoff Report is not liable. It ruled on a narrow basis, pointing out that the person who originally posted the review on Ripoff Report gave the site's owners irrevocable
permission to host that content. Therefore, continuing to host it could not be an infringement, even if Goren did own the copyright.
Goren paid the price for his improper assertion of copyright here: the appeals court upheld an award of over $100,000 in attorneys' fees. The award of fees in a case like this is important both because it deters improper assertion of copyright,
and because it helps compensate defendants who choose to litigate rather than settling for nuisance value simply to avoid the expense of defending their rights.
We're glad the First Circuit acted to limit the ways that private entities can censor speech online.