access to information – Techdirt (original) (raw)

Court Tosses Arkansas Age Verification Law For Violating The 1st Amendment

from the two-down dept

Just after a judge granted an injunction against Texas’ adult content age verification law on 1st Amendment grounds, a judge in Arkansas did the same to that state’s social media age verification law. Trade organization NetChoice had challenged the law, and the court basically gave them a complete and total victory.

Just like the ruling in Texas, the opinion here is a good read. As with Texas, Arkansas relied on Tony Allen, who represents the age verification providers, to claim that the technology works great and the laws are fine. As in Texas, the court here is not convinced.

Also, as with Texas, the state in Arkansas had challenged the standing of the organization bringing the suit, and the court rejects that challenge. We’ll skip over the details because it’s just not that interesting. The important stuff is the 1st Amendment analysis.

First, the court looks to see if the law should be rejected on 1st Amendment grounds for being too vague (the Texas court talked about the vagueness issues, but didn’t rule on that point, only using the vague language to emphasize how the law was not narrowly tailored). Here, the court explains in detail how Arkansas’ law is way too vague:

Here, Act 689 is unconstitutionally vague because it fails to adequately define which entities are subject to its requirements. A “social media company” is defined as “an online forum that a company makes available for an account holder” to “[c]reate a public profile, establish an account, or register as a user for the primary purpose of interacting socially with other profiles and accounts,” “[u]pload or create posts or content,” “[v]iew posts or content of other account holders,” and “[i]nteract with other account holders or users, including without limitation establishing mutual connections through request and acceptance.” Act 689 at § 1101(7)(A) (emphasis added). But the statute neither defines “primary purpose”—a term critical to determining which entities fall within Act 689’s scope—nor provides any guidelines about how to determine a forum’s “primary purpose,” leaving companies to choose between risking unpredictable and arbitrary enforcement (backed by civil penalties, attorneys’ fees, and potential criminal sanctions) and trying to implement the Act’s costly age-verification requirements. Such ambiguity renders a law unconstitutional.

Amusingly, while Arkansas tried to claim it was obvious who was covered, NetChoice got a SnapChat exec to admit that he thought the company was not covered by the law until he heard one of the law’s co-sponsors say otherwise:

The State argues that Act 689’s definitions are clear and that “any person of ordinary intelligence can tell that [Act 689] regulates Meta, Twitter[,] and TikTok.” (Doc. 34, p. 20). But what about other platforms, like Snapchat? David Boyle, Snapchat’s Senior Director of Products, stated in his Declaration that he was not sure whether his company would be regulated by Act 689. He initially suspected that Snapchat would be exempt until he read a news report quoting one of Act 689’s co-sponsors who claimed Snapchat was specifically targeted for regulation.

For what it’s worth, the law is actually so vague that when we wrote about it after it was signed, we noted that it actually could be read to say that TikTok, SnapChat, and YouTube were all excluded. So, for the state to claim it’s obvious who’s covered is laughable.

Apparently, even Arkansas’s lawyers and its expert witness couldn’t agree on what the law covered (oops!):

During the evidentiary hearing, the Court asked the State’s expert, Mr. Allen, whether he believed Snapchat met Act 689’s definition of a regulated “social media company.” He responded in the affirmative, explaining that Snapchat’s “primary purpose” matched Act 689’s definition of a “social media company” (provided it was true that Snapchat also met the Act’s profitability requirements). When the Court asked the same question to the State’s attorney later on in the hearing, he gave a contrary answer—which illustrates the ambiguous nature of key terms in Act 689. The State’s attorney disagreed with Mr. Allen—his own witness—and said the State’s official position was that Snapchat was not subject to regulation because of its “primary purpose.”

Yeah, I’m gonna say your law is pretty damn vague when that happens. The court then details how other parts of the law are equally vague, including the lack of definitions of “predominant function” and “substantial function” which are both important in determining who the law applies to. Also this:

Act 689 also fails to define what type of proof will be sufficient to demonstrate that a platform has obtained the “express consent of a parent or legal guardian.” Id. at § 1102(a). If a parent wants to give her child permission to create an account, but the parent and the child have different last names, it is not clear what, if anything, the social media company or third-party servicer must do to prove a parental relationship exists. And if a child is the product of divorced parents who disagree about parental permission, proof of express consent will be that much trickier to establish—especially without guidance from the State.

And the judge notes that the state’s own expert, Mr. Allen, more or less admitted there was no clear way to determine who was a legal guardian for a child under the law.

Then we get to the 1st Amendment specifics. Here the court explores the same topic that a judge in California is currently considering with regards to California’s Age Appropriate Design Code. Namely: is an age verification mandate content-based or content-neutral?

As in California, Arkansas couldn’t resist giving up the ballgame, by effectively admitting that the goal of age verification is to suppress certain kinds of speech.

On the other hand, the State points to certain speech-related content on social media that it maintains is harmful for children to view. Some of this content is not constitutionally protected speech, while other content, though potentially damaging or distressing, especially to younger minors, is likely protected nonetheless. Examples of this type of speech include depictions and discussions of violence or self-harming, information about dieting, so-called “bullying” speech, or speech targeting a speaker’s physical appearance, race or ethnicity, sexual orientation, or gender. If the State’s purpose is to restrict access to constitutionally protected speech based on the State’s belief that such speech is harmful to minors, then arguably Act 689 would be subject to strict scrutiny

Thankfully, the judge shot down Arkansas’ attempt to say that this is no different than restricting kids access to a bar or a casino. As we’ve pointed out over and over again, there’s a big difference with social media, where you’re dealing with speech. That’s not the case with a casino or a bar. The judge agrees, calling that argument “weak.”

The State’s briefing analogized Act 689 to a restriction on minors entering a bar or a casino. But this analogy is weak. After all, minors have no constitutional right to consume alcohol, and the primary purpose of a bar is to serve alcohol. By contrast, the primary purpose of a social media platform is to engage in speech, and the State stipulated that social media platforms contain vast amounts of constitutionally protected speech for both adults and minors. Furthermore, Act 689 imposes much broader “location restrictions” than a bar does.

Somewhat hilariously, the judge cites an exchange he had with Arkansas’ lawyers before saying “clearly, the State’s analogy is not persuasive.”

THE COURT: Well, to pick up on Mr. Allen’s analogy of the mall, I haven’t been to the Northwest Arkansas mall in a while, but it used to be that there was a restaurant inside the mall that had a bar. And so certainly minors could not go sit at the bar and order up a drink, but they could go to the Barnes & Noble bookstore or the clothing store or the athletic store. Again, borrowing Mr. Allen’s analogy, the gatekeeping that Act 689 imposes is at the front door of the mall, not the bar inside the mall; yes?

THE STATE: The state’s position is that the whole mall is a bar, if you want to continue to use the analogy.

THE COURT: The whole mall is a bar?

THE STATE: Correct.

Your speech suppression law might just be unconstitutional when you’re admitting to a judge that the equivalent would be banning kids from an entire mall because there’s a bar within one restaurant.

Even though the court says that strict scrutiny almost certainly applies, it decided to test the law under intermediate scrutiny (which is what the state wanted) and finds that it still fails to pass 1st Amendment muster. With strict scrutiny, you have to show a compelling government interest and that the law is narrowly tailored to only limit the speech in question, and that there are no better alternatives. With intermediate scrutiny, the law still needs to be narrowly tailored to a significant government interest (rather than a compelling state interest), and the law has to be “substantially related” to reaching that objective, rather as narrowly tailored as strict scrutiny requires.

And, still, the Arkansas law fails. First off, the law clearly creates chilling effects:

It is likely that many adults who otherwise would be interested in becoming account holders on regulated social media platforms will be deterred—and their speech chilled—as a result of the age-verification requirements, which, as Mr. Allen testified, will likely require them to upload official government documents and submit to biometric scans.

And, finally, we see a discussion of the impact on kids’ free speech rights (remember, they have those as well). So many of these discussions forget that kids have rights as well, but the judge here remembered:

Act 689 bars minors from opening accounts on a variety of social media platforms, despite the fact that those same platforms contain vast quantities of constitutionally protected speech, even as to minors. It follows that Act 689 obviously burdens minors’ First Amendment Rights….

[….]

Neither the State’s experts nor its secondary sources claim that the majority of content available on the social media platforms regulated by Act 689 is damaging, harmful, or obscene as to minors. And even though the State’s goal of internet safety for minors is admirable, “the governmental interest in protecting children does not justify an unnecessarily broad suppression of speech addressed to adults.” Reno, 521 U.S. at 875; see also Brown, 564 U.S. at 804–05 (“Even where the protection of children is the object, the constitutional limits on governmental action apply.”).

What about how narrowly tailored the bill is? The judge is… not impressed, especially since the state cited sites that aren’t even subject to the law in defense of the law.

To begin with, the connection between these harms and “social media” is ill defined by the data. It bears mentioning that the State’s secondary sources refer to “social media” in a broad sense, though Act 689 regulates only some social media platforms and exempts many others. For example, YouTube is not regulated by Act 689, yet one of the State’s exhibits discussing the dangers minors face on “social media” specifically cites YouTube as being “the most popular online activity among children aged 3–17” and notes that “[a]mong all types of online platforms, YouTube was the most widely used by children . . . .”…

Likewise, another State exhibit published by the FBI noted that “gaming sites or video chat applications that feel familiar and safe [to minors]” are common places where adult predators engage in financial “sextortion” of minors. See State’s Hearing Exhibit 6. However, Act 689 exempts these platforms from compliance. Mr. Allen, the State’s expert, criticized the Act for being “very limited in terms of the numbers of organizations that are likely to be caught by it, possibly to the point where you can count them on your fingers. . . .”

The state tried to justify this by pointing to a NCMEC (National Center for Missing and Exploited Children) article that listed out the “most dangerous” sites, but the judge questioned the data here:

During the hearing, the Court observed that the data in the NCMEC article lacked context; the article listed raw numbers but did not account for the amount of online traffic and number of users present on each platform. The State’s attorney readily agreed, noting that “Facebook probably has the most people on it, so it’s going to have the most reports.” But he still opined that the NCMEC data was a sound way to target the most dangerous social media platforms, so “the highest volume [of reports] is probably where the law would be concentrated.”

Frankly, if the State claims Act 689’s inclusions and exemptions come from the data in the NCMEC article, it appears the drafters of the Act did not read the article carefully. Act 689 regulates Facebook and Instagram, the platforms with the two highest numbers of reports. But, the Act exempts Google, WhatsApp, Omegle, and Snapchat— the sites with the third-, fourth-, fifth-, and sixth-highest numbers of reports. Nextdoor is at the very bottom of NCMEC’s list, with only one report of suspected child sexual exploitation all year, yet the State’s attorney noted during the hearing that Nextdoor would be subject to regulation under Act 689.

Ouch!

Also this:

None of the experts and sources cited by the State indicate that risks to minors are greater on platforms that generate more than $100 million annually. Instead, the research suggests that it is the amount of time that a minor spends unsupervised online and the content that he or she encounters there that matters. However, Act 689 does not address time spent on social media; it only deals with account creation. In other words, once a minor receives parental consent to have an account, Act 689 has no bearing on how much time the minor spends online. Using the State’s analogy, if a social media platform is like a bar, Act 689 contemplates parents dropping their children off at the bar without ever having to pick them up again. The Act only requires parents to give express permission to create an account on a regulated social media platform once. After that, it does not require parents to utilize content filters or other controls or monitor their children’s online experiences

It kinda sounds like those drafting these laws (1) have no idea what they’re talking about and (2) don’t much care to find out.

The judge is equally unimpressed by the point of parental permission for account signups:

The State’s brief argues that “requiring a minor to have parental authorization to make a profile on a social media site . . . . means that many minors will be protected from the well-documented mental health harms present on social media because their parents will have to be involved in their profile creation” and are therefore “more likely to be involved in their minor’s online experience.” (Doc. 34, p. 19). But this is just an assumption on the State’s part, and there is no evidence of record to show that a parent’s involvement in account creation signals an intent to be involved in the child’s online experiences thereafter.

The court even points out that the UK’s (very problematic!) Online Safety Bill seems to be “more consistent” with US Supreme Court precedent than Arkansas’ law is.

Consider the differences between Act 689 and the UK’s Online Safety Bill. Mr. Allen, who worked on the UK legislation, testified that the UK’s main concern was preventing minors from accessing particular content, whereas Arkansas will require age verification at the time of account creation, regardless of the content. It appears the UK’s approach is more consistent with Supreme Court precedent than Arkansas’s approach. In Packingham, the Court observed that it was possible for a state to “enact specific, narrowly tailored laws” targeted to “conduct that often presages a sexual crime, like contacting a minor or using a website to gather information about a minor”; but it would be unconstitutional for a state to unduly burden adult access to social media

End result: Arkansas’ law likely violates the 1st Amendment with vague language and its broad applicability beyond the very narrow interests of the state. And that would strip adults of their own 1st Amendment rights through chilling effects, as well as kids’ own rights to access information.

In sum, NetChoice is likely to succeed on the merits of the First Amendment claim it raises on behalf of Arkansas users of member platforms. The State’s solution to the very real problems associated with minors’ time spent online and access to harmful content on social media is not narrowly tailored. Act 689 is likely to unduly burden adult and minor access to constitutionally protected speech. If the legislature’s goal in passing Act 689 was to protect minors from materials or interactions that could harm them online, there is no compelling evidence that the Act will be effective in achieving those goals.

End result, the law cannot go into effect.

It seems that Thursday was a great day for the 1st Amendment, and a bad day for state legislatures pushing age verification (and the age verification provider lobbyists).

Filed Under: 1st amendment, access to information, age verification, arkansas, free speech, social media, tony allen
Companies: netchoice

Reclaiming Control: The Internet Archive Empowers People. Gatekeepers Keep Suing

from the it's-ridiculous-that-we-need-to-remind-people-that-libraries-are-good dept

As a child, nothing warmed me more than my mother’s “Three C’s Soup”: Cabbage, Carrot, Carraway from Jane Brody’s Good Food Book: Living the High Carbohydrate Way (published in 1980 and still in print, no ebook version has yet been licensed). And when my mother died in late fall 2018, there was nothing I wanted to cook more, but her copy had gone missing.

I could have called the library and asked them to read me the recipe, or to scan it and to send it to me, but my library had a later print edition of the book. I could have bought a used copy of the 1980 edition, which I eventually did, but I wanted to cook it that day. So instead, I went to Open Library, the Internet Archive’s Controlled Digital Lending program, and borrowed the book for an hour, returning it when the soup was finished. In the words of my mother’s favorite literary character, the Mock Turtle: It was beautiful soup.

About a year and a half later, the Internet Archive was sued for providing books in this manner to the public. The suit was triggered by a short-lived, well meaning program that made books available to students during a dark part of the pandemic by lifting certain restrictions on how many people at a time could borrow a given library title. That lawsuit just came to a judgment, ordering the Archive to take down a part of their collection and striking a blow to Controlled Digital Lending more generally, though the Archive will appeal.

To be clear: what the Internet Archive is doing is traditional library lending in a digital form, and frankly not radical – I can just get access to the materials I want much more quickly through the Archive, but I must also return them much more quickly. There is no situation in which acquiring a recipe from an obsolete edition of Brody’s first cookbook with no ebook equivalent would hurt her royalties. Libraries have traditionally bought one copy of a book and then lent it, much like they do with CDL, which maintains an “owned to loaned” ratio through sequestering materials.

While big publishers would have you believe that people are flocking to the Internet Archive to borrow and read these scans for free rather than relying on the “thriving ebook licensing market for libraries,” they ignore a few crucial facts to advance a bad faith argument about market harm: the average time readers spend with an Internet Archive scan is under 30 minutes. People seem to be using these materials as intended: as reference, grabbing just the bit of information they need.

If someone wants to download and read an ebook outside of a streaming service or licensed copy, they are not going to use a scanned, DRM-protected epub that they can borrow from the Internet Archive for an hour. Authors, publishers, and musicians know this, and yet content rightsholders continue to litigate a nonprofit library at great expense to themselves and their authors. As the New York Times reports, even authors who were once critical of the Archive’s efforts have removed their initial statements. Author Malcolm Harris recently tweeted, “The Internet Archive was an invaluable resource when I was writing PALO ALTO and it pisses me off that Hachette sued in the name of their authors.”

There are, of course, very real threats to authors and publishers: large download sites, censorship by legislators, “chokepoint” intermediaries, AI corporations gobbling up materials and selling them back to the public as new products, the general “enshittification” of platforms, the high overhead costs and venture capital ownership of streaming that has been predicted to collapse for nearly ten years, Overdrive’s monopoly in libraries, publishers’ resistance to reasonable contractual requests by authors, at-risk corporate archives, or Amazon’s stranglehold hold over the digital book and audiobook market. In pursuing this case (and a related case from the music industry), the litigants seek to distract artists from the very real conditions of labor that would start to fix a broken system but might cut into their bottom line: better contracts and a humane income, artistic independence and the freedom to publish, collaborations that inspire new creation, more control over their terms and payments, and less consolidation in the market.

Could copyright holders join together and rethink streaming and licensing in order to build a digital system that works for authors, small publishers, and artists, considering that five companies control at least 77% of the US best seller market and artists are struggling? Of course, but it wouldn’t provide the kind of surveillance of readers, data harvesting, and AI-written books that they hope will cut many authors out of the equation entirely. (Obviously no librarian wants any of the above.) Penalizing libraries providing scans of books and music largely for reference sets a precedent in a limited case that benefits no one.

Creators deserve more. As the SAG AFTRA strike has shown, large, organized communities can disrupt an entire industry by fighting for their rights. Rather than adopting a passive position against corporate overreach in the face of an digital licensing industry where one major company dominates up to 85% of the digital book market (Amazon) and another dominates up to 90% of the library lending market (Overdrive/Libby), we can come together and fight for fairer contracts, particularly when it comes to licensing rights and equitable downstream uses of work. And in my own community of librarians, we must stop infighting about whether we agree with the Archive’s position, or whether Controlled Digital Lending is legal or not. We have to work together to wrest power from the large corporations that dominate commercial publishing. The future of knowledge depends on it.

Filed Under: access to information, digital access, libraries
Companies: internet archive

Open Access Makes Research More Widely Cited, Helping Spread Knowledge

from the share-the-knowledge dept

Open access has been discussed many times here on Techdirt. There are several strands to its story. It’s about allowing the public to access research they have paid for through tax-funded grants, without needing to take out often expensive subscriptions to academic titles. It’s about saving educational institutions money that they are currently spending on over-priced academic journals, and which could be better spent elsewhere. It’s about helping to spread knowledge without the friction that traditional publishing introduces, ideally moving to licenses that allow academic research papers to be distributed freely and without restrictions.

But there’s another aspect that receives less attention, revealed here by a new paper that looks at how open access articles are used in a particular and important context – that of Wikipedia. There is a natural synergy between the two, which both aim to make access to knowledge easier. The paper seeks to quantify that:

we analyze a large dataset of citations from Wikipedia and model the role of open access in Wikipedia’s citation patterns. We find that open-access articles are extensively and increasingly more cited in Wikipedia. What is more, they show a 15% higher likelihood of being cited in Wikipedia when compared to closed-access articles, after controlling for confounding factors. This open-access citation effect is particularly strong for articles with low citation counts, including recently published ones. Our results show that open access plays a key role in the dissemination of scientific knowledge, including by providing Wikipedia editors timely access to novel results. These findings have important implications for researchers, policymakers, and practitioners in the field of information science and technology.

What this means in practice is that for the general public open access articles are even more beneficial than those published in traditional titles, since they frequently turn up as Wikipedia sources that can be consulted directly. They are also advantageous for the researchers who write them, since their work is more likely to be cited on the widely-read and influential Wikipedia than if the papers were not open access. As the research notes, this effect is even more pronounced for “articles with low citation counts” – basically, academic work that may be important but is rather obscure. This new paper provides yet another compelling reason why researchers should be publishing their work as open access as a matter of course: out of pure self interest.

Follow me @glynmoody on Mastodon. Originally posted to the Walled Culture blog.

Filed Under: access to information, open access, research, sharing knowledge, studies
Companies: wikipedia

What Would Aaron Swartz Think Of Reddit’s Ridiculous New Direction?

from the closing-off-the-commons dept

Aaron Swartz was, perhaps by technicality, a co-founder of Reddit. The more complete story is that he was working on a different project, infogami, that got merged into Reddit, which was created by Alexis Ohanian and Steve Huffman, but it’s been said that part of the deal was that all three would get founder credit. Years later, Huffman insisted that Swartz wasn’t really a co-founder and shouldn’t be called such. But, still, Swartz’s views on access to information were certainly a compelling part of early Reddit’s existence.

As you likely know, Swartz believed in open access to information, which likely contributed to his efforts to free academic research, leading to his arrest and the ridiculous criminal charges against him, which likely contributed to his dying by suicide.

Given all of that, I do wonder what Aaron would think, over a decade later, of his former company that he helped grow, locking up information under new ridiculous API terms.

Seemingly taking a page from Twitter (and some other companies) seeing (1) API access as a possible revenue stream, and (2) ridiculously freaking out over generative AI tools being trained on their data, Reddit announced it April that it would begin charging for API access.

A few weeks ago, the developer of Apollo, a popular Reddit app, said that Reddit was pricing the new API in a way that would cost his firm $20 million per year, a price so ridiculous that Apollo has now announced it’s shutting down the app. In many ways this is reminiscent of Twitter cutting off all the popular third party apps that users relied on (and also the ridiculous pricing of Twitter’s new API).

Between this and Facebook instituting paid verification it feels like parts of the internet industry are copying Elon’s bad ideas.

Huffman did a Reddit AMA (natch) late last week, and doubled down on the API fees. Much of Reddit is up in arms over this. There are users, subreddits, and moderators who are all protesting the changes. And a few of the small subreddits I’m in are talking about decamping for other sites.

Huffman’s responses to the AMA also really rubbed a lot of people the wrong way, including making a bunch of claims about the developer of Apollo that felt unfair and mean-spirited.

And, really, this whole thing is ridiculous. I can understand efforts to offer a paid API for more direct access to certain features, but it should be standard practice to allow third parties to build apps that interact with your service. Hell, Reddit didn’t even have a mobile app for many, many years and was totally dependent on third party apps (or web access).

It feels like so many of these efforts are really about shutting down access to the open web, locking up data and information in their various siloes. It’s against the very spirit of Aaron Swartz, who helped create one version of RSS among other things, and believed in not just open access to information, but that the internet was designed so that people could build on-top of others’ work, enabling everyone to build better and better solutions.

Instead, we’re seeing companies like Twitter and Reddit looking to lock up information, joining companies like Meta which have long had a somewhat siloed view of how information should work.

Perhaps we need a “Bluesky-like” project for Reddit, building a more decentralized, open protocol for communities of interest. Arguably, that was Usenet/NNTP, but perhaps it’s time for someone to either reinvigorate that or create something new that is more modern, and can be more connected either in a federated manner or a truly decentralized one. There are, already, a few attempts at building a Reddit-like service on ActivityPub, including Kbin and Lemmy (which, because they’re both in the fediverse, interoperate). Incredibly, over the weekend (in another Elon-like move), Reddit temporarily banned a subreddit about Kbin, though as people started pointing out the hypocrisy, the subreddit was allowed to return.

Playing around with Lemmy over the weekend made me think it has real promise — and along those lines wonder what Huffman thinks he’s doing at Reddit. Yes, the company is desperate to complete it’s planned IPO, and yes, to do so he needs to look like the company can become profitable. But how’s he going to do that if the site’s most committed users are leaving?

Already, thousands of subreddits have gone dark, and while the blackout is supposed to be for 48 hours, some subreddits, including the massive r/music have said they’ll stay dark until the API issue is fixed:

So what would Aaron Swartz think of all this? I think he’d be out there leading the protest, spinning up a Lemmy server, and making sure that the information continues to flow, rather than get locked up.

Filed Under: aaron swartz, access to information, ai, api, federation, fees, lemmy, open information, protocols, steve huffman
Companies: reddit

As Big Book Publishers Look To Kill The Internet Archive, It Introduces ‘Democracy’s Library’

from the protecting-human-knowledge dept

Last week the Internet Archive announced a new project: “Democracy’s Library.” This hits on a bunch of important topics for us here at Techdirt. First, it’s a travesty that government-funded research and publications are often hidden away, locked up and impossible to access, despite the fact that they were paid for by us, the public. Second, democracy is legitimately under threat across the globe, and getting more access to quality information out to the public is more important than ever before. While I know that some people have been turning their backs on this idea of late, it’s more important than ever that quality information and data is more accessible to more people. Third, as we’ve seen, previous attempts by dedicated activists and individuals to make government data public have unfortunately ended in tragedy, so having strong backing is key here. And… finally, this is all happening at the same time that the largest book publishers in the world, who should be supporting access to knowledge, are literally trying to destroy the Internet Archive.

Let’s break each of these down.

We’ve written for years about how the big academic publishers are responsible for abusing copyright law to lock up important publicly funded knowledge. We’ve seen increasing pushback on this, including just a few months ago when the Biden administration made moves towards requiring all publicly funded research to be immediately available to the public. There’s still a way to go before making that a reality, but it’s a huge, huge step in the right direction. But, if those works are just published randomly here or there, it’s not much use. Having a tool and a place in which to find and sort through all of that knowledge and research is key, and that’s part of what’s so exciting about Democracy’s Library.

Second, anyone who’s been paying attention to, well, everything, has seen that democracy is under threat at home and abroad. And a key tool for authoritarian, anti-democratic forces is to control the distribution of information. Democracy’s Library is a method of getting around that. It’s actually quite fun to just look around and skim what’s already there (and the project is just getting started). I mean, there are tens of thousands of Congressional hearings that are just fascinating, and hopefully will enable even greater research into how democracy works (and, well, doesn’t always work).

Third, as we saw with the horrific prosecution of Aaron Swartz and the ridiculous civil cases against Carl Malamud, both of which were around their activist attempts to make sure the public had access to publicly funded works, this simple concept of having access to things our tax dollars pay for is way, way, way more controversial than it should be. Indeed, part of the Democracy’s Library announcement was the Internet Archive’s Brewster Kahle giving Malamud an award for all of his efforts over the years.

And, of course, for all this to work, these kinds of efforts need to be both sustainable and resilient, so it’s good to also see that Filecoin Foundation is working with the Internet Archive on this project. I know that it’s become trendy to mock absolutely everything related to cryptocurrency, but there are so many important use cases, and building Democracy’s Library in a manner that is resilient to threats against the Internet Archive’s very existence is key to this sort of thing actually lasting long into the future.

Finally, that takes us to the fact that these threats against the Archive’s existence are not theoretical at all. As we’ve been discussing, the major US book publishers have all been suing the Archive, and demanding millions in damages, that could shut down the entire organization. This is a real threat to this kind of important information sharing.

No matter what, this is an exciting project, and it’s good to see these kinds of positive, beneficial programs happening, even in such troubled times.

Filed Under: access to information, access to knowledge, democracy, democracy's library, government funded works, library, research
Companies: filecoin foundation, internet archive

Surprise: Bill Introduced To Finally Make PACER Free To All

from the nice! dept

So this is somewhat unexpected, but Rep. Doug Collins has introduced HR 6714, a bill to make federal court records free to the public.

H.R. 6714, the Electronic Court Records Reform Act, would guarantee free public access to federal court records through the Public Access to Court Electronic Records (PACER) system, which currently charges the public a fee to access documents. The bill would also require updates to the PACER system, including adding a function to enable all users to search its catalog of court documents easily. Currently, litigants are handicapped because they cannot conduct research through the system.

The bill would further support legal professionals and the general public by consolidating the Case Management/Electronic Case Files (CM/ECF) system. The CM/ECF system was designed to increase efficiency for all stakeholders within the judicial system, but it is compartmentalized among different courts. This makes locating records and filing documents difficult and inefficient. The Electronic Court Records Reform Act would unify these disconnected systems under the Administrative Office of the U.S. Courts in order to ensure uniform access to all federal litigants.

This would be… amazing. We’ve spent years highlighting the massive problems with PACER, the federal court system that charges insane amounts for basically everything you do, just to access public records, and which functions very much like it was designed around 1995. There are a few court cases arguing that PACER fees are illegal and a recent ruling in one of those cases agreed. As we noted at the time, that was hardly the final word on the matter. A bill like the ones Collins introduced would be an amazing leap forward in giving public access to court documents.

Unfortunately, it’s unclear if the bill has any support beyond Collins, but this is the kind of thing you would hope that Congress could get behind.

Filed Under: access to information, doug collins, fees, pacer, public documents, us court system

With So Much Public Interest In Our Judicial System, It's Time To Free Up Access To Court Documents

from the pacer-isn't-keeping-pace dept

Like hundreds of thousands of Americans, I am closely following the “airport cases” around the country. In order to keep abreast of the latest developments in one of the fastest-moving cases, Washington v. Trump, I built a Twitter bot that scrapes the public docket mirror hosted by the Ninth Circuit and tweets about new documents and links as soon as they’re added.

This case leads a legal push that has attracted incredible amounts of public attention. There have been tens of thousands of protestors, dozens of organizations and companies that submitted amicus briefs (including Techdirt’s think-tank arm, the Copia Institute), and over 135,000 people who tuned into the audio-only livestream of the Ninth Circuit oral arguments (which was also broadcast live on multiple news channels).

Those numbers reveal a public demand to be informed and to participate in the law. But they also show the limitations on the kind of transparency that can satisfy that demand. Most notably, any attempts to make court proceedings more accessible to the public has to contend with the expense and overhead of dealing with PACER. My bot is only possible because the Ninth Circuit provides a public docket mirror for individual “cases of interest,” essentially duplicating the existing system outside the paywall. Those mirrors are manually updated, which means they are labor-intensive, error-prone, and not always up to date.

By contrast, look at the @big_cases bot run by USA Today reporter Brad Heath. It monitors a set of district court cases, selected by hand, and posts new documents as they get filed. These district court cases don’t have public docket mirrors, so @big_cases accesses PACER directly — and for that, it needs user credentials and ultimately to pay for the documents it downloads. For a journalist whose job is reporting on legal developments, paying these costs makes sense — and sharing the documents further is a valuable public service. Without institutional backing, though, it’s hard to justify the PACER expenses.

The costs go beyond the financial. These bots represent an experiment in meeting members of the public where they are, and those efforts are less likely if they come with a pricetag. Worse, it means these experiments will be limited to cases of widespread general interest. To pick a trivial example: Techdirt readers might be interested in a bot that tweets updates from privacy or copyright dockets. If those public documents were freely accessible, anybody could build a tool like that without worrying about subsidizing the ongoing PACER costs.

At a time when the president and his press secretary are calling into question the legitimacy of factual news reporting, an informed public requires more than ever access to primary sources. Moreover, they need to be confident in the integrity of those sources. Journalists reporting on court proceedings increasingly post the original source documents. Without a free and public government source file, though, most readers can’t see the context of the case, and they have to trust that they’re getting the full and unmodified documents in question.

The procedural stance of Washington v. Trump is unclear. A Ninth Circuit judge has made a request that both sides brief whether a larger panel should re-hear the question. The White House has issued conflicting reports about whether or not it will appeal Thursday’s order to the Supreme Court. And the District Court has indicated that a new briefing schedule might be appropriate. These paths offer various levels of transparency, and it’s frustrating to know my bot may not be able to keep up with, say, district court proceedings simply because of the antiquated PACER system.

Meanwhile, the issue continues to attract attention from lawmakers. The House Judiciary Committee will hold a hearing on Judicial Transparency and Ethics on Tuesday, February 14, and is expected to include testimony on PACER. Hopefully, the Committee uses this to recognize that a truly transparent judiciary requires rethinking how PACER functions.

Filed Under: access to information, courts, judicial system, pacer, records, transparency

Elsevier Ramps Up Its War On Access To Knowledge

from the shameful-behavior-from-a-shameful-company dept

We just recently wrote about the terrible anti-science/anti-knowledge/anti-learning decision by publishing giant Elsevier to demand that Academia.edu take down copies of journal articles that were submitted directly by the authors, as Elsevier wished to lock all that knowledge (much of it taxpayer funded) in its ridiculously expensive journals. Mike Taylor now alerts us that Elsevier is actually going even further in its war on access to knowledge. Some might argue that Elsevier was okay in going after a “central repository” like Academia.edu, but at least it wasn’t going directly after academics who were posting pdfs of their own research on their own websites. While some more enlightened publishers explicitly allow this, many (including Elsevier) technically do not allow it, but have always looked the other way when authors post their own papers.

That’s now changed. As Taylor highlights, the University of Calgary sent a letter to its staff saying that a company “representing” Elsevier, was demanding that they take down all such articles on the University’s network.

The University of Calgary has been contacted by a company representing the publisher, Elsevier Reed, regarding certain Elsevier journal articles posted on our publicly accessible university web pages. We have been provided with examples of these articles and reviewed the situation. Elsevier has put the University of Calgary on notice that these publicly posted Elsevier journal articles are an infringement of Elsevier Reed’s copyright and must be taken down.

Taylor’s analysis of this is worth reading. He basically notes that any shred of a chance for Elsevier to fix their reputation is now gone. In the past, he’d suggested ways that the company could better interact with academics and librarians to rebuild its reputation — but this basically crosses the point of no return.

Because this is, obviously, a very short-term move. Whatever feeble facade Elsevier have till now maintained of being partners in the ongoing process of research is gone forever. They’ve just tossed it away, instead desperately trying to cling onto short-term profit. In going after the University of Calgary (and I imagine other universities as well, unless this is a pilot harassment), Elsevier have declared their position as unrepentant enemies of science.

In essence, this move is an admission of defeat. It’s a classic last-throw-of-the-dice manoeuvre. It signals a recognition from Elsevier that they simply aren’t going to be able to compete with actual publishers in the 21st century. They’re burning the house down on their way out. They’re asset-stripping academia.

Elsevier are finished as a credible publisher. I can’t believe any researcher who knows what they’re doing is going to sign away their rights to Elsevier journals after this.

Of course, there’s a legal-geek part of me that hopes that Elsevier takes that last step off the ledge of insanity and actually files a lawsuit against a University (or, even more ridiculous, an academic author), and we get to see the mother of all copyright battles concerning fair use. Remember, in the US, among the key areas where fair use is likely to be found are “teaching, scholarship or research.” That’s in the statute itself. So, go ahead, Elsevier, bring it on.

The University of Calgary is up in Canada and it has somewhat different rules, including fair dealing, rather than fair use. But the Supreme Court there appears to be quite supportive of fair dealing, especially in academic settings. Other reports note that the company has been similar notices to US-based colleges as well.

Why Elsevier has decided to declare such a war on access is anyone’s guess, but it’s not going to end well.

Filed Under: access to information, copyright, dmca, education, journals, knowledge, open access, research, takedowns, universities, war on access
Companies: elsevier

ISP Blocks For Copyright And Porn Denying Access To All Sorts Of Important Information

from the failure dept

Just as copyright maximalists are declaring victory in claiming that there’s no problem at all with having ISPs censor the internet, reports are flowing in concerning all sorts of serious problems. Over in the UK, ISPs have begun implementing the mandatory porn filtering that Prime Minister David Cameron has been pushing, and the results are about what you’d expect: all sorts of non pornographic sites are being blocked, including important sex education sites and, more troubling, rape and sexual abuse information sites (while plenty of porn is getting through).

Among the sites TalkTalk blocked as “pornographic” was BishUK.com, an award-winning British sex education site, which receives more than a million visits each year.

TalkTalk also lists Edinburgh Women’s Rape and Sexual Abuse Centre website as “pornographic.”

The company also blocked a programme run by sex education experts, and taught to 81,000 American children, that has been in development for more than 20 years.

TalkTalk’s filter is endorsed by Mr Cameron but it failed to block 7% of the 68 pornographic websites tested by Newsnight.

Meanwhile, blockades concerning copyright are wreaking similar havoc. Users of Sky Broadband recently discovered that the megapopular imgur image hosting site (which we use to host many of our images) was completely blocked in a moronic attempt to try to block access to a torrent site. Because both the torrent site and imgur used the same CDN (one of the most popular ones), Sky mistakenly blocked it all.

Sky employs an automated blocking system that polls torrent sites’ DNS records in order to quickly re-block them in the event they switch servers or IP addresses.

“Sky regularly pull IP addresses listed on our DNS servers and adds them to their block list. This block list is then used by an advanced proxy system that redirects any requests to the blacklisted IP addresses to a webserver that the ISP owns which returns a blocked page message,” YIFY explains.

Therefore, when YIFY began using CloudFlare servers in Australia, Sky pulled these IP addresses and blocked them in the mistaken belief that they were YIFY’s. Since Imgur uses the same IP addresses, Sky’s automated blocking took the site offline, to the huge disappointment of countless customers.

Of course, these obvious over-blockages are merely the tip of the iceberg of what people were talking about when they noted that site blocking would “break the internet.” They never meant that the entire internet would shut down, but that certain basic functions of the internet would not work properly, including important security tools like DNSSec. But the fact that even beyond that, these attempts at blocking content at the ISP level are flubbing so badly seems like pretty clear evidence that blocking is not a solution, but rather an even bigger problem than expected.

Of course, governments have been warned repeatedly about what a bad idea such blocking plans are, but when you deal with technologically illiterate politicians and pro-censorship extremists, they seem to think that it’s the perfect solution, without realizing just how much harm they’re doing, not just in the collateral damage, and in guaranteeing that basic internet functions (like DNS) don’t perform the way everyone expects them to, but also in general access to important health and safety information.

Filed Under: access to information, censorship, copyright, false positives, isp blocks, porn, uk

Lawsuits Filed In Colombia To Challenge Local Version Of SOPA

from the bad-laws dept

You may remember that, a couple months ago, Colombia rushed through its own version of a SOPA-like copyright law. The details were particularly horrifying. Last fall, the US and Colombia signed a “free trade agreement” (FTA). Tragically, like many FTAs put together by the USTR these days, it included something that’s the very opposite of “free trade”: a requirement to put in place extraordinary protectionist measures in the form of expansive copyright laws. In order to be in compliance with the treaty, Colombia had to pass some really bad legislation. Its first attempt, a few months earlier, failed when the public spoke up. However, in April, President Obama came to visit Colombia on a very high-profile trip. In order to make him happy, the Colombia government rushed through a ridiculously bad copyright bill, making it law with almost no public discourse. Not surprisingly, the bill is terrible.

Thankfully, two Senators have now filed lawsuits challenging the law, saying that it violates privacy rights and limits freedom of access to information. Oh yeah, and it violates the Colombian constitution. The serious problems with the bill had been raised with the Colombian government prior to it passing, but in their rush to make Obama happy, apparently they didn’t care.

Filed Under: access to information, colombia, fta, obama, privacy, sopa, ustr