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Guest Post by @cagoldberglaw:  Scared as Hell: Section 230 Denies Access to Justice, Not Free Speech Protection

October 4, 2019 Comments off

By Carrie A. Goldberg

[We are honored to be able to post this article by one of the great lawyers of our time, Carrie Goldberg author of the new book Nobody’s Victim: Fighting Psychos, Stalkers, Pervs, and Trolls and victim rights lawyer extraordinaire.  Carrie is going after Grindr for putting a product into commerce with a design defect that allows stalkers to use the app to assault users.  This argument is similar to the Ford Pinto’s exploding gas tank.  This post started as a Twitter thread, and we’re very pleased that Carrie agreed to let us post it as an article.  We should all be aware that in addition to the “value gap” of the DMCA safe harbor, Big Tech also has another safe harbor in Section 230 which I call the “values gap.”  You have to ask yourself, how do they sleep at night?]

For the past 2-1/2 years my firm has been in the fight of our life in the case Herrick vs. Grindr which involved owners and operators of the Grindr gay dating app refusing to assist our client, Matthew Herrick, when mobs of strangers were coming to his home to have sex with him.

Using Grindr’s geolocating and other technology, Herrick’s ex impersonated him and directed over 1200 men to him in person. Sometimes 23 a day. Herrick went to the police and got an order of protection. Nothing Herrick was able to do helped to stop this assault. 

And neither did Grindr. No, Grindr said in court they didn’t need to help Matthew because the Communications Decency Act Section 230 protected them from any legal responsibility for harms caused by their app.  The district judge agreed. We appealed it to a panel of judges sitting on the Second Circuit Court of Appeals.

The Second Circuit panel also said Grindr bore no responsibility to Matthew and that the earlier judge was right to throw the case out. We sought a rehearing en banc before all the judges on the Second Circuit trying to explain that we were not suing for words or communications from a user (for which Grindr would get Section 230 immunity) but rather, we were suing Grindr because its product was defective.  

Why?  Because Grindr designed their product without an internal system or other protective functionality to save users and the world at large from people abusing their product to impersonate, stalk, prey—easily foreseeable harms that a reasonable person could have predicted might happen before Grindr was put into commerce.

In August we submitted a cert petition for the Supreme Court of the United States to review the Second Circuit’s ruling and reverse it. We’ll know Oct. 1 if they will. In my practice, I see a lot of people like Matthew whose lives were destroyed because apps and social media companies ignored them.  People who are victims of revenge porn, sextortion, harassment, doxxing, horrible content coming up in search engines, all of which could be prevented by eliminating these design defects and putting people over profits.

These Big Tech companies have ZERO incentive to build safety precautions into their products because this 1996 law Section 230 has been interpreted by the courts to shield tech companies from just about any responsibility.  It means we as individuals CAN NOT sue them. A bunch of politicians, lobbyists and even some professors will say that Section 230 protects our speech. 

That is not true.

What Section 230 does is remove options for us as individuals when lives are destroyed through tech. Our courts are no longer an option for us to get justice.  I can’t overstate how extreme it is for there to be companies that are UNTOUCHABLE by our courts.

Our tort system is centuries old and it is the great equalizer enforced by the courts—an entire branch of government and integral to our entire concept of checks and balances. In almost every kind of harm, for a couple hundred bucks a single person can use the tort law and the courts to hold the most powerful person or company responsible if they caused us harm and we can stop them from further hurting us which is Matthew’s case.

The ramifications of Section 230 immunity don’t just impact those harmed. Section 230 harms us all as a society. We are entering an era of greater surveillance, Artificial Intelligence, self-driving cars, facial recognition technology.  Companies developing this have ZERO incentive to be thinking about how their products will be abused and exploited by bad actors. Why?  First and foremost because there is no pressure on them from the threat of litigation. 

So in addition to Matthew’s battle with the courts, my big discovery is that our politicians are now inserting language into our international trade agreements that echos Section 230.  

If they succeed and we are injured by some other country’s negligent tech product, app or social media company, our country is immunizing those companies too. Those international companies now can’t be sued by us either.

Look at Article 19.17 of NAFTA 2.0 nafta excerpt

The language, which is even MORE expansive than Section 230 in protecting tech companies was already included in NAFTA.

And we have some politicians working to include it in trade deals with Japan, India, and the EU.  This is INSANE. 

These politicians are taking away our rights against tech companies in our own country and others. This means they can all be as exploitive of users and privacy and human rights as they want. 

Everybody should be scared as hell. Section 230 is NOT about online speech. It is about access to justice.  No other industry is immune like this. These companies basically have sovereign immunity. The most powerful, wealthy, omniscient, omnipotent industry in the history of the world has as much or more protections from being sued as a government. 

We need to hold our politicians accountable. We need to expose those who are fighting against our individual rights and voting to exclude these companies from judicial systems around the world. Additionally, if our American companies don’t like changes we make to Section 230, they’ll just relocate to a country with whom we have a trade agreement.

Who in congress is THAT owned by Big Tech that they would betray the American people and strip them of all recourse for injuries that occur online?

A Cautionary Tale for Congress: Big Tech Uses Fake Grassroots Interference Lobbying In Europe

March 11, 2019 Comments off

There’s a sound policymaking reason why the European Parliament should ignore the bombardment of email and social media messaging it has recently endured for copyright reform.  That reason is well articulated in a 2010 memo by Professor Cass Sunstein (then Administrator of the White House Office of Information and Regulatory Affairs) when he cautioned the Obama Administration against relying on social media for making policy:

“Because, in general, the results of online rankings, ratings, and tagging (e.g., number of votes or top rank) are not statistically generalizable, they should not be used as the basis for policy or planning.”

In a post-Cambridge Analytica world where social media platforms not only are ubiquitous but also have earned the distrust of policy-makers and voters as well as parents, Sunstein’s nine-year old admonition is especially prescient-but he could have added “easy to fake.” This would apply to the new boiler rooms of fake Twitter accounts with distorted ratios of tweets to followers, or followed accounts to likes–such as the infamous Internet Research Agency.

Sunstein’s memo is both ominous and also relevant given developments at the European Parliament over the last few months.  Big Tech’s interference lobbyists are fighting the last war against safe harbor reform using “fake grassroots” online campaigns against Members instead of legitimate advocacy.

Specifically, the reaction of multinational Big Tech legacy players to the European Parliament’s safe harbor reform effort demonstrates a toxic brew of corporations attacking Members.   That’s a dark turn to Sunstein’s analysis.  Crucially, it appears that bot farming techniques and mass email attacks verging on denial of service are weapons in Big Tech’s interference lobbying arsenal despite their hollow assurances to multiple governments about policing interference by state actors in national elections.

Think it can’t happen here?  Think again.

Europe’s Safe Harbor Reform

Known formally as the “European Directive on Copyright in the Digital Single Market” or informally as “Article 13”, the EU legislation is intended to update the law and, among other things, substantially cuts back the legacy safe harbor privilege that is so valuable to Big Tech. (See Emmanuel Legrand’s excellent summary.)  It’s understandable that they would–Facebook, Google, Twitch and others have based their trillion-dollar market caps on what otherwise would be called piracy–also known as the “value gap”.

Congress has yet to grapple with the US version of the DMCA safe harbor (referring generally to Section 512 of the Copyright Act), although the Copyright Office is beginning field hearings on the much needed overhaul.  Originally conceived in 1998 as a way to afford a little latitude to reasonable people acting reasonably, Big Tech and its acolytes have distorted the DMCA “safe harbor” beyond recognition in the last twenty years and converted into an alibi.

In the last session, Congress took an important step by cutting back a different safe harbor in Section 230 of the Communications Decency Act with the SESTA-FOSTA package.  SESTA-FOSTA eliminated a safe harbor for sex trafficking which seems uncontroversial-but caused a huge lobbying counterattack by Big Tech.  If you caught any of the manipulated onslaught against SESTA-FOSTA, you have a taste of what the European Parliament is experiencing with their Copyright Directive.

There’s no question that Google and Facebook lobbyists interfered with the EU’s legislation–the companies threatened an MEP that they would interfere in the EU elections if they were challenged on Article 13:

German MEP Truepel gives a first hand confirmation of what happened.  Further, in an official blog post that has become controversial because it struck a little close to home, the European Commission commented conclusively on the MEPs’ experience with Big Tech’s “fake grassroots” campaign and interference lobbying tactics:

[T]here is ample evidence from respected sources, here and here and perhaps here or here or indeed here that ‘Big Technology’ has even ‘created’ grassroots campaigns against the Copyright Directive in order to make it look and sound as if the EU is acting against the ‘will of the people’….

Do Google, Facebook or others really need to pay to persuade?

Are we in a world where ordinary people side with the fire breathing dragon against the knight with a blue and yellow shield?

The Fake Interference Campaign

Yes, Google and Facebook attempted to pass off a blistering email spam campaign targeting Members as a spontaneous grassroots uprising.  Not just once, but three times on three separate votes in Parliament on the Copyright Directive-even after they had been caught faking and interfering by major news outlets.

The first “campaign” was around a committee vote that resulted in a win for Big Tech. Thanks to David Lowery and Volker Reick, the press called out the fakery in exposes by the Times of London and Frankfurter Allgemeine Zeitung among others.  Big Tech attempted to counter that expose by organizing in-person protests after making online threats of the “we’ll show you we’re real” variety across Europe.

Far from setting Europe ablaze, some estimate that these protests drew fewer than a total of 500 across Europe in multiple locations.  Pictures taken at these “protests” suggest that they were primarily organized by the Pirate Party, a fringe political party with one MEP that supports piracy and safe harbors as its name suggests.

Expose or no expose, the “fake grassroots” and spamming were repeated as the Copyright Directive went through successive procedural votes-which Big Tech lost miserably.  Yet the multinationals keep running the same interference play and kept getting sacked.

Members and the European Commission Speak Out Against Interference

Members were not fooled.  One example is an odd Tweetstorm against reform by suspicious accounts.  Members were subjected to attempts to stimulate the documented “emotional contagion” that drives social media.  A typical bot-like Twitter account against the Copyright Directive would have followers in low double digits or fewer but tens of thousands of tweets and a disproportionately high number of “likes” (in some cases over 100,000).  That ratio suggests that the account was used to capitalize on the Twitter “ratioing” algorithm to drive the corporate message into user timelines.  One wonders what did Twitter know and when did they know it?

In addition to the Tweetstorm, interference lobbyists ran a near-DDOS level email campaign that was actually counter-productive.  When asked at a press conference why the vote tally switched from opposing the Copyright Directive in the first committee vote to overwhelmingly supporting it in the next plenary vote, German MEP Helga Truepel pulled no punches:

“I think it’s due to this message spamming campaign. I talked to some of my colleagues here [and they] are totally [angry]…”

The European Commission’s official blog echoes Sunstein:

So next time, when you get a sponsored message on your timeline, which says something like ‘the EU will kill the world wide web as we know it’, stop, pause and consider for a moment. Ask yourself: Cui Bono? Who really benefits from this message or this wider negative campaign?

We know the answer to that question.  Google and Facebook became the biggest corporations in commercial history by manipulating legacy safe harbors in ways that neither Congress nor the EU intended.  Despite assurances about policing interference by bad actors on their networks, the European experience suggests they are actively using similar interference techniques to protect their privilege.

Europe has shown the world that legacy Big Tech business models can be brought into the 21st Century through well thought-out legislation.  But Congress would do well to arm itself against comparable “fake grassroots” interference campaigns in making policy for vital DMCA safe harbor reform to close the value gap.

[This post first appeared in the MusicTechPolicy newsletter, sign up for free version here.]

@helienne Lindvall on MMA Safe Harbor

July 16, 2018 Comments off

It must be said that Music Modernization Act safe harbor was released the same time as CISAC released an economic impact study of the DMCA safe harbor.  We think of DMCA as being worse because we’ve lived with it for decades–in decades how will we feel about the MMA safe harbor and is anyone feeling lucky?

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