A three-judge panel of the 9th U.S. Circuit Court of Appeals has given a thumbs down to censorship of an ad called Faces of Global Terrorism .
The years-long lawsuit is over an ad based on an image created by the State Department that
previously was run on county buses in the Seattle area.
The ad was submitted to King County Metro Transit (KCMT) by Pamela Geller, Robert Spencer and their organization, the American Freedom Defense Initiative.
It first was rejected on a
long list of grounds, including that some of its statements were inaccurate.The statements were corrected, but KCMT still rejected it on the grounds that it disparaged some people and might disrupt the system.
The court found that found that
KCMT's arguments were lofty ideals, but were unconstitutional in this case. The court said:
We conclude that Metro's disparagement standard discriminates, on its face, on the basis of viewpoint, the panel explained.
The ruling said Metro requires the refusal of ads that disparage people, but giving offense is a viewpoint, so Metro's disparagement clause discriminates.
As for the disruption?
The transit system
previously had run the largely similar ad presented by the State Department, with no ill effects
A federal court considering a challenge to the Allow States and Victims to Fight Online Sex Trafficking Act of 2017, or FOSTA , dismissed the case on Monday.
EFF and partner law firms filed a lawsuit in June against the
Justice Department on behalf of two human rights organizations, a digital library, an activist for sex workers, and a certified massage therapist to block enforcement of FOSTA.
Unfortunately, a federal court sided with the
government and dismissed Woodhull Freedom Foundation et al. v. United States. The court did not reach the merits of any of the constitutional issues, but instead found that none of the plaintiffs had standing to challenge the law's legality.
We're disappointed and believe the decision is wrong. For example, the court failed to apply the standing principles that are usually applied in First Amendment cases in which the plaintiffs' speech is chilled. The plaintiffs are
considering their options for their next steps.
FOSTA was passed by Congress for the worthy purpose of fighting sex trafficking, but the poorly-written bill contains language that criminalizes the protected speech of those who
advocate for and provide resources to adult, consensual sex workers. Worse yet, the bill actually hinders efforts to prosecute sex traffickers and aid victims.
The lawsuit argues that FOSTA forces community forums and speakers
offline for fear of criminal charges and heavy civil liability, in violation of their constitutional rights. We asked the federal court to strike down the law, though the government argued that the plaintiffs were not likely to be subject to criminal or
civil liability under the law.
Facebook's Partnership with US state-funded think tanks
Last Wednesday Facebook announced it would work with two US government-funded think tanks in order bolster the social media giant's election integrity efforts around the
The new partnership with the International Republican Institute (IRI) and the National Democratic Institute (NDI) has been described by Reuters as an initiative to slow the global spread of misinformation that could
influence elections, acknowledging that fake news sites were still read by millions.
But both the IRI and NDI are funded by the National Endowment for Democracy (NED) , which has since its late Cold War era founding defined itself
as a soft power wing of the US government abroad focused on democracy promotion.
Journalist Max Blumenthal recently described the NDI as a taxpayer funded organization that has interfered in elections, mobilized coups, and
orchestrated public relations campaigns against nations that resist Washington's agenda.
California's net neutrality bill, SB 822 has received a majority of votes in the Senate and is heading to the governor's desk. In this fight, ISPs with millions of dollars to spend lost to the voice of the majority of Americans who support net
neutrality. This is a victory that can be replicated.
ISPs like Verizon, AT&T, and Comcast hated this bill. SB 822 bans blocking, throttling, and paid prioritization, classic ways that companies have violated net neutrality
principles. It also incorporates much of what the FCC learned and incorporated into the 2015 Open Internet Order, preventing new assaults on the free and open Internet. This includes making sure companies can't circumvent net neutrality at the point of
interconnection within the state of California. It also prevents companies from using zero rating--the practice of not counting certain apps or services against a data limit--in a discriminatory way. That is to say that, say, there could be a plan where
all media streaming services were zero-rated, but not one where just one was. One that had either paid for the privilege or one owned by the service provider. In that respect, it's a practice much like discriminatory paid prioritization, where ISPs
create fast lanes for those who can pay or for other companies they own.
ISPs and their surrogates waged a war of misinformation on this bill. They argued that net neutrality made it impossible to invest in expanding and upgrading
their service, even though they make plenty of money . Lobbying groups sent out robocalls that didn't mention net neutrality--which remains overwhelmingly popular--merely mentioned the bill's number and claimed, with no evidence, that it would force ISPs
to raise their prices by $30 . And they argued against the zero-rating provision when we know those practices disproportionately affect lower-income consumers.
There was a brief moment in this fight when it looked like the ISPs
had won. Amendments offered in the Assembly Committee on Communication and Conveyance after the bill had passed the California Senate mostly intact gutted the bill. But you made your voices heard again and again until the bill's strength was restored and
we turned opponents into supporters in the legislature.
In the middle of all of this, the story broke that Verizon had throttled the service of a fire department in California during a wildfire. During the largest wildfire in
California history, the Santa Clara fire department found that its unlimited data plan was being throttled by Verizon and, when contacted, the ISP told the fire department they needed to pay more for a better plan. Under the 2015 Open Internet Order, the
FCC would have been able to investigate Verizon's actions . But since that order's been repealed, Verizon might escape meaningful punishment for its actions.
California's fight is a microcosm of the nation's. Net neutrality is
popular across the country . The same large ISPs that led the fight against it in California are the ones that serve the rest of the country, a majority of which don't have a choice of provider . The arguments that they made in California are the same
ones they made to the FCC to get the Open Internet Order repealed. The only thing preventing what happened to California's firefighters from happening elsewhere is Verizon saying it won't.
We need to net neutrality protections on
as many levels as we can get them. And Congress can still vote to restore the FCC's 2015 Open Internet Order. In fact, the Senate already did. So contact your member of the House of Representatives and tell them to vote for the Congressional Review Act
and save national net neutrality protections.
President Donald Trump took to Twitter to complain that social media companies are discriminating against prominent conservatives, saying we won't let that happen. He tweeted:
Social Media is totally discriminating
against Republican/Conservative voices. Speaking loudly and clearly for the Trump Administration, we won't let that happen. They are closing down the opinions of many people on the RIGHT, while at the same time doing nothing to others.
.....Censorship is a very dangerous thing & absolutely impossible to police. If you are weeding out Fake News, there is nothing so Fake as CNN & MSNBC, & yet I do not ask that their sick behavior be removed. I get used to
it and watch with a grain of salt, or don't watch at all.
The president later added:
....Too many voices are being destroyed, some good & some bad, and that cannot be allowed to happen. Who is
making the choices, because I can already tell you that too many mistakes are being made. Let everybody participate, good & bad, and we will all just have to figure it out!
Trump in July said his administration will look into the
practice of shadow banning on Twitter, or reducing the visibility of certain people or groups on the platform, which he alleged was happening to prominent conservative voices.
US politicians are debating the need for internet censorship, social media regulation and privacy legisation.
Recently Axios' David McCabe published a fascinating policy paper from the office of Senator Mark Warner. The paper outlines a comprehensive
censorship and regulatory regime that would touch virtually every aspect of social networks. It's a comprehensive starting point for discussion
The paper is notably well-versed both on the dangers posed by misinformation and the trade-offs that
come with increased regulation, especially to privacy and free speech. No doubt the US debate will be echoed around the world.
So what exactly do Warner and his staff propose? The ideas are designed to address three broad categories:
misinformation, disinformation, and the exploitation of these technologies; privacy and data protection; and competition.
Here are some the ideas presented.
Misinformation, disinformation, and the exploitation of technology.
requiring networks to label automated bots;
requiring platforms to verify identities, despite the significant consequences to free speech;
legally requiring platforms to make regular disclosures about how many fake accounts they've
ending legal protections on contents hosts for defamation;
legally requiring large platforms to create APIs for academic research;
spending more money to fight cyber threats from Russia and other state-level actors.
Privacy and data protection.
Create a US version of the GDPR;
designate platforms as information fiduciaries with the legal responsibility of protecting our data;
empowering the Federal Trade Commission to make rules around data privacy;
legislative ban on dark patterns that trick users into accepting terms and conditions without reading them;
allow the government to audit corporate algorithms.
Require tech companies to continuously disclose to consumers how their data is being used;
require social network data to be made portable;
require social networks to be interoperable;
designate certain products as
essential facilities and demand that third parties get fair access to them.
These proposals remain far from becoming law -- but perhaps not as far as tech platforms would wish.
Amazon has removed products bearing Nazi and white supremacist symbols from its online store.
The retailer had faced criticism for letting sellers offer a variety of far right-wing paraphernalia including clothing and jewellery.
it had blocked the sellers of onesies with burning cross motifs, jewellery using the Nazi swastika as well as music and audio books pushing fascist views.
In a report released last month, the Partnership for Working Families and the Action
Center on Race and the Economy claimed Amazon was helping Nazi and modern white nationalist groups prosper by letting them sell their merchandise and materials.
The report prompted Congressman Keith Ellison from Minnesota to write to Amazon
expressing his alarm that it was allowing the sale of products that promote hateful and racist ideologies.
As well as stopping items being listed and blocking sellers, Amazon said it was now working to get the items removed from its fulfilment
centres. It said it used automated methods as well as teams of investigators to scan listings looking for items that break its policies or national laws covering hate speech, violence or racial intolerance.
The US Federal Government is quietly meeting with top tech company representatives to develop a proposal to protect web users' privacy amid the ongoing fallout globally of scandals that have rocked Facebook and other companies.
Over the past month,
the Commerce Department has met with representatives from Facebook and Google, along with Internet providers like AT&T and Comcast, and consumer advocates, sources told the Washington Post.
The goal of these meetings is to come up with a data
privacy proposal at the federal level that could serve as a blueprint for Congress to pass sweeping legislation in the mode of the European Union GDPR. There are currently no laws that govern how tech companies harness and monetize US users' data.
A total of 22 meetings with more than 80 companies have been held on this topic over the last month.
government to discuss what a modern U.S. approach to privacy protection might look like.
On Thursday, July 19, at 4 pm, the Electronic Frontier Foundation (EFF) will urge a federal judge to put enforcement of FOSTA on hold during the pendency of its lawsuit challenging the constitutionality of the federal law. The hold is needed, in
part, to allow plaintiff Woodhull Freedom Foundation, a sex worker advocacy group, to organize and publicize its annual conference, held August 2-5.
FOSTA , or the Allow States and Victims to Fight Online Sex Trafficking Act, was
passed by Congress in March. But despite its name, FOSTA attacks online speakers who speak favorably about sex work by imposing harsh penalties for any website that might be seen as facilitating prostitution or contribute to sex trafficking. In Woodhull
Freedom Foundation v. U.S. , filed on behalf of two human rights organizations, a digital library, an activist for sex workers, and a certified massage therapist, EFF maintains the law is unconstitutional because it muzzles constitutionally protected
speech that protects and advocates for sex workers and forces speakers and platforms to censor themselves.
Enforcement of the law should be suspended because the plaintiffs are likely to win the case and because it has caused, and
will continue to cause, irreparable harm to the plaintiffs, EFF co-counsel Bob Corn-Revere of Davis Wright Tremaine will tell the court at a hearing this week on the plaintiffs' request for a preliminary injunction. Because of the risk of criminal
penalties, the plaintiffs have had their ads removed from Craigslist and censored information on their websites. Plaintiff Woodhull Freedom Foundation has censored publication of information that could assist sex workers negatively impacted by the law.
FOSTA threatens Woodhull's ability to engage in protected online speech, including livestreaming and live tweeting its August meeting, unless FOSTA is put on hold.
Judge Richard Leon of United States District Court in Washington D.C. heard Woodhull's request for a preliminary injunction that would stop the law from remaining in effect until the group's lawsuit, but did not issue a judgement. Nor did he announce a
date when he would issue a ruling.
According to one account from inside the courtroon, Leon sounded skeptical that the law had actually caused harm to the plaintiffs in the case.
An art gallery in Portland, Oregon was receiving a bit of a backlash for a cartoon image displayed in its window and posted to its Facebook page. It depicts President Donald Trump, head pulled back, with a bloody knife to his throat, and the caption: 'Fuck Trump'
The image posted by One Grand Gallery appeared to part of an installation launched last week titled Fuck You Mr. President , which featured nearly three dozen artists, according to the gallery's Facebook page, and was accompanied by similar
A picture of the image began circulating online with many Trump supporters calling it a threat on the president's life and asking for Secret Service to investigate.
The post was soon removed from the gallery's Facebook page and
KATU-TV reports the image has also been removed from the gallery's window.
We are asking a court to declare the Allow States and Victims to Fight Online Sex Trafficking Act of 2017 ("FOSTA") unconstitutional and prevent it from being enforced. The law was written so poorly that it
actually criminalizes a substantial amount of protected speech and, according to experts, actually hinders efforts to prosecute sex traffickers and aid victims.
In our lawsuit, two human rights organizations, an individual
advocate for sex workers, a certified non-sexual massage therapist, and the Internet Archive, are challenging the law as an unconstitutional violation of the First and Fifth Amendments. Although the law was passed by Congress for the worthy purpose of
fighting sex trafficking, its broad language makes criminals of those who advocate for and provide resources to adult, consensual sex workers and actually hinders efforts to prosecute sex traffickers and aid victims.
FOSTA made three major changes to existing law. The first two involved changes to federal criminal law:
First, it created an entirely new federal crime by adding a new section to the Mann Act. The new law makes it a crime to "own, manage or operate" an online service with the intent to "promote or facilitate"
"the prostitution of another person." That crime is punishable by up to 10 years in prison. The law further makes it an "aggravated offense," punishable by up to 25 years in prison and also subject to civil lawsuits if
"facilitation" was of the prostitution of 5 or more persons, or if it was done with "reckless disregard" that it "contributed to sex trafficking." An aggravated violation may also be the basis for an individual's civil
lawsuit. The prior version of the Mann Act only made it illegal to physically transport a person across state lines for the purposes of prostitution.
Second, FOSTA expanded existing federal criminal sex trafficking law.
Before SESTA, the law made it a crime to knowingly advertise sexual services of a minor or any person doing so only under force, fraud, or coercion, and also criminalized several other modes of conduct. The specific knowledge requirement for advertising
(that one must know he advertisement was for sex trafficking) was an acknowledgement that advertising was entitled to some First Amendment protection. The prior law additionally made it a crime to financially benefit from "participation in a
venture" of sex trafficking. FOSTA made seemingly a small change to the law: it defined "participation in a venture" extremely broadly to include "assisting, supporting, or facilitating." But this new very broad language has
created great uncertainty about liability for speech other than advertising that someone might interpret as "assisting" or "supporting" sex trafficking, and what level of awareness of sex trafficking the participant must have.
As is obvious, these expansions of the law are fraught with vague and ambiguous terms that have created great uncertainty about what kind of online speech is now illegal. FOSTA does not define "facilitate",
"promote", "contribute to sex trafficking," "assisting," or supporting" -- but the inclusion of all of these terms shows that Congress intended the law to apply expansively. Plaintiffs thus reasonably fear it will be
applied to them. Plaintiffs Woodhull Freedom Foundation and Human Rights Watch advocate for the decriminalization of sex work, both domestically and internationally. It is unclear whether that advocacy is considered "facilitating" prostitution
under FOSTA. Plaintiffs Woodhull and Alex Andrews offer substantial resources online to sex workers, including important health and safety information. This protected speech, and other harm reduction efforts, can also be seen as "facilitating"
prostitution. And although each of the plaintiffs vehemently opposes sex trafficking, Congress's expressed sense in passing the law
was that sex trafficking and sex work were "inextricably linked." Thus, plaintiffs are legitimately concerned that their advocacy on behalf of sex workers will be seen as being done in reckless disregard of some "contribution to sex
trafficking," even though all plaintiffs vehemently oppose sex trafficking.
The third change significantly undercut the protections of one of the Internet's most important laws, 47 U.S.C. § 230, originally a provision of the
Communications Decency Act, commonly known simply as Section 230 or CDA 230:
FOSTA significantly undermined the legal protections intermediaries had under 42 U.S.C. § 230, commonly known simply as Section 230. Section 230 generally immunized intermediaries form liability arising from content created by
others--it was thus the chief protection that allowed Internet platforms for user-generated content to exist without having to review every piece of content appearing posted to them for potential legal liability. FOSTA undercut this immunity in three
significant ways. First, Section 230 already had an exception for violations of federal criminal law, so the expansion of criminal law described above also automatically expanded the Section 230 exception. Second, FOSTA nullified the immunity also for
state criminal lawsuits for violations of state laws that mirror the violations of federal law. And third, FOSTA allows for lawsuits by individual civil litigants.
The possibility of these state criminal and private civil lawsuit is very troublesome. FOSTA vastly magnifies the risk an Internet host bears of being sued. Whereas federal prosecutors typically carefully pick and choose which
violations of law they pursue, the far more numerous state prosecutors may be more prone to less selective prosecutions. And civil litigants often do not carefully consider the legal merits of an action before pursing it in court. Past experience teaches
us that they might file lawsuits merely to intimidate a speaker into silence -- the cost of defending even a meritless lawsuit being quite high. Lastly, whereas with federal criminal prosecutions, the US Department of Justice may offer clarifying
interpretations of a federal criminal law that addresses concerns with a law's ambiguity, those interpretations are not binding on state prosecutors and the millions of potential private litigants.
FOSTA Has Already Censored
As a result of these hugely increased risks of liability, many platforms for online speech have shuttered or restructured. The following as just two examples:
Two days after the Senate passed FOSTA, Craigslist eliminated its Personals section, including non-sexual subcategories such as "Missed Connections" and "Strictly Platonic." Craigslist
attributed this change to FOSTA, explaining "Any tool or service can be misused. We can't take such risk without jeopardizing all our other services, so we are
regretfully taking craigslist personals offline. Hopefully we can bring them back some day." Craigslist also shut down its Therapeutic Services section and will not permit ads that were previously listed in Therapeutic Services to be re-listed in
other sections, such as Skilled Trade Services or Beauty Services.
VerifyHim formerly maintained various online tools that helped sex workers avoid abusive clients. It described itself as "the biggest dating blacklist
database on earth." One such resource was JUST FOR SAFETY, which had screening tools designed to help sex workers check to see if they might be meeting someone dangerous, create communities of common interest, and talk directly to each other about
safety. Following passage of FOSTA, VerifyHim took down many of these tools, including JUST FOR SAFETY, and explained that it is "working to change the direction of the site."
Plaintiff Eric Koszyk is a certified massage therapist running his own non-sexual massage business as his primary source of income. Prior to FOSTA he advertised his services exclusively in Craigslist's Therapeutic Services section.
That forum is no longer available and he is unable to run his ad anywhere else on the site, thus seriously harming his business. Plaintiff the Internet Archive fears that it can no longer rely on Section 230 to bar liability for content created by third
parties and hosted by the Archive, which comprises the vast majority of material in the Archive's collection, on account of FOSTA's changes to Section 230. The Archive is concerned that some third-party content hosted by the Archive, such as archives of
particular websites, information about books, and the books themselves, could be construed as promoting or facilitating prostitution, or assisting, supporting, or facilitating sex trafficking under FOSTA's expansive terms. Plaintiff Alex Andrews
maintains the website RateThatRescue.org, a sex worker-led, public, free, community effort to share information about both the organizations and services on which sex workers can rely, and those they should avoid. Because the site is largely
user-generated content, Andrews relies on Section 230's protections. She is now concerned that FOSTA now exposes her to potentially ruinous civil and criminal liability. She has also suspended moving forward with an app that would offer harm reduction
materials to sex workers. Human Rights Watch relies heavily on individuals spreading its reporting and advocacy through social media. It is concerned that social media platforms and websites that host, disseminate, or allow users to spread their reports
and advocacy materials may be inhibited from doing so because of FOSTA.
And many many others are experiencing the same uncertainty and fears of prosecution that are plaguing other advocates, service providers, platforms, and
platform users since FOSTA became law.
We have asked the court to preliminarily enjoin enforcement of the law so that the plaintiffs and others can exercise their First Amendment rights until the court can issue a final ruling.
But there is another urgent reason to halt enforcement of the law. Plaintiff Woodhull Freedom Foundation is holding its annual Sexual Freedom Summit August 2-, 2018. Like past years, the Summit features a track on sex work, this year titled "Sex as
Work," that seeks to advance and promote the careers, safety, and dignity of individuals engaged in professional sex work. In presenting and promoting the Sexual Freedom Summit, and the Sex Work Track in particular, Woodhull operates and uses
interactive computer services in numerous ways: Woodhull uses online databases and cloud storage services to organize, schedule and plan the Summit; Woodhull exchanges emails with organizers, volunteers, website developers, promoters and presenters
during all phases of the Summit; Woodhull has promoted the titles of all workshops on its Summit website ; Woodhull also publishes the biographies and contact information
for workshop presenters on its website, including those for the sex workers participating in the Sex Work Track and other tracks. Is publishing the name and contact information for a sex worker "facilitating the prostitution of another person"?
If it is, FOSTA makes it a crime.
Moreover, most, if not all, of the workshops are also promoted by Woodhull on social media such as Facebook and Twitter; and Woodhull wishes to stream the Sex Work Track on Facebook, as it does
other tracks, so that those who cannot attend can benefit from the information and commentary.
Without an injunction, the legality under FOSTA of all of these practices is uncertain. The preliminary injunction is necessary so that
Woodhull can conduct the Sex as Work track without fear of prosecution.
It is worth emphasizing that Congress was repeatedly warned that it was passing a law that would censor far more speech than was necessary to address the
problem of sex trafficking, and that the law would indeed hinder law enforcement efforts and pose great dangers to sex workers. During the Congressional debate on FOSTA and SESTA, anti-trafficking groups such as
Freedom Network and the
International Women's Health Coalition issued statements warning that the laws would hurt efforts to aid trafficking
victims, not help them.
Even Senator Richard Blumenthal, an original cosponsor of the SESTA (the Senate bill) criticized the new Mann Act provision when it was proposed in the House bill, telling
Wired "there is no good reason to proceed with a proposal that is opposed by the very survivors it claims to
support." Nevertheless, Senator Blumenthal ultimately voted to pass FOSTA.
In support of the
preliminary injunction , we have submitted the declarations of several experts who confirm the
harmful effects FOSTA is having on sex workers, who are being driven back to far more dangerous street-based work as online classified sites disappear, to the loss of online "bad date lists" that informed sex workers of risks associated with
certain clients, to making sex less visible to law enforcement, which can no longer scour and analyze formerly public websites where sex trafficking had been advertised. For more information see the Declarations of
Dr. Alexandra Lutnick ,
Prof. Alexandra Frell Levy , and
Dr. Kimberly Mehlman-Orozco .
A Pennsylvania judge has ruled that a transport authority had every right to reject an atheist advertisement, the latest chapter in a saga that's dragged on for more than six years.
In 2012, atheist Justin Vacula and the Northeastern
Pennsylvania Freethought Society attempted to place the following ad on buses in the County of Lackawanna Transit System (COLTS).
Although there should be nothing controversial about the word 'atheists' and two text links to atheist societies,
during this period, atheist and religious groups around the world were producing adverts rather more obviously knocking the other side. And perhaps it was what these other groups were doing that led COLTS refusing the advert claiming it be
'controversial' and so could be rejected.
Justin Vacula appealed the decision with the help of American Atheists, but the COLTS administrators stood by their claims.
This kicked off legal actions that have culminated in the court's
affirmation that COLTS' censorship is legal.