websites – Techdirt (original) (raw)

Will Browsers Be Required By Law To Stop You From Visiting Infringing Sites?

from the i-can't-open-that-page,-dave dept

Mozilla’s Open Policy & Advocacy blog has news about a worrying proposal from the French government:

In a well-intentioned yet dangerous move to fight online fraud, France is on the verge of forcing browsers to create a dystopian technical capability. Article 6 (para II and III) of the SREN Bill would force browser providers to create the means to mandatorily block websites present on a government provided list.

The post explains why this is an extremely dangerous approach:

A world in which browsers can be forced to incorporate a list of banned websites at the software-level that simply do not open, either in a region or globally, is a worrying prospect that raises serious concerns around freedom of expression. If it successfully passes into law, the precedent this would set would make it much harder for browsers to reject such requests from other governments.

If a capability to block any site on a government blacklist were required by law to be built in to all browsers, then repressive governments would be given an enormously powerful tool. There would be no way around that censorship, short of hacking the browser code. That might be an option for open source coders, but it certainly won’t be for the vast majority of ordinary users. As the Mozilla post points out:

Such a move will overturn decades of established content moderation norms and provide a playbook for authoritarian governments that will easily negate the existence of censorship circumvention tools.

It is even worse than that. If such a capability to block any site were built in to browsers, it’s not just authoritarian governments that would be rubbing their hands with glee: the copyright industry would doubtless push for allegedly infringing sites to be included on the block list too. We know this, because it has already done it in the past, as discussed in Walled Culture the book (free digital versions).

Not many people now remember, but in 2004, BT (British Telecom) caused something of a storm when it created CleanFeed:

British Telecom has taken the unprecedented step of blocking all illegal child pornography websites in a crackdown on abuse online. The decision by Britain’s largest high-speed internet provider will lead to the first mass censorship of the web attempted in a Western democracy.

Here’s how it worked:

Subscribers to British Telecom’s internet services such as BTYahoo and BTInternet who attempt to access illegal sites will receive an error message as if the page was unavailable. BT will register the number of attempts but will not be able to record details of those accessing the sites.

The key justification for what the Guardian called “the first mass censorship of the web attempted in a Western democracy” was that it only blocked illegal child sexual abuse material Web sites. It was therefore an extreme situation requiring an exceptional solution. But seven years later, the copyright industry were able to convince a High Court judge to ignore that justification, and to take advantage of CleanFeed to block a site, Newzbin 2, that had nothing to do with child sexual abuse material, and therefore did not require exceptional solutions:

Justice Arnold ruled that BT must use its blocking technology CleanFeed – which is currently used to prevent access to websites featuring child sexual abuse – to block Newzbin 2.

Exactly the logic used by copyright companies to subvert CleanFeed could be used to co-opt the censorship capabilities of browsers with built-in Web blocking lists. As with CleanFeed, the copyright industry would doubtless argue that since the technology already exists, why not to apply it to tackling copyright infringement too?

That very real threat is another reason to fight this pernicious, misguided French proposal. Because if it is implemented, it will be very hard to stop it becoming yet another technology that the copyright world demands should be bent to its own selfish purposes.

Follow me @glynmoody on Mastodon. Originally published to Walled Culture.

Filed Under: blocklist, browsers, cleanfeed, copyright, france, sren, websites

In 303 Creative, By Happily Helping One Bigot, SCOTUS (Perhaps Inadvertently) Helped The Larger Fight Against Bigotry

from the perhaps-unintentional dept

Last week’s 6-3 decision in the 303 Creative v. Elenis case, with all the conservative justices vindicating a website designer’s ability to refuse to build a website celebrating gay marriage, may seem at first glance to be a blow to gay rights. And maybe that’s what some or all of the six justices in the majority intended for it to be. But that’s not the upshot to the decision. With its language and rationale the majority has instead reinforced in our constitutional jurisprudence a critical recognition of the way the First Amendment right to free expression reaches online expression, including as expressed through coding. In so recognizing it the Court has ended up providing critical protection for everyone, including those whom bigoted government officials seek to victimize and silence. Even if that’s not what the Court realized it was doing, or intended to do.

To understand why this decision is actually good for the most vulnerable among us, think about what would follow if the case had been decided against the web designer. The dissent, quite reasonably, frets that it ensures that bigots can still be bigots. And it likely will. But a decision to the contrary, or even in her favor with a different rationale, would have handed them greater power to abuse than this decision preserves.

We know it would because we can see it happening right now before our eyes with a growing number of government officials who are using, as a vector of attack, the control of what views can be expressed on the Internet to favor bigots and their destructive messages. Consider, for instance, the actions taken by Florida to attempt to regulate the Internet by constraining platforms’ ability to eliminate the hateful expression they don’t wish to further (actions which so far have only been partially enjoined by the Eleventh Circuit). Or those taken by Texas, which the Fifth Circuit bizarrely blessed in their entirety (and are only now enjoined for procedural reasons). According to that court, Texas, which is busy trying to make life a nightmare for anyone state officials’ bigotry sets its sights on, can of course force Internet sites to only advance expression that vindicates its odious policy and suppress any expressive efforts that challenges it.

Expressive freedom is key to being able to push back at injustice and bigotry, which is exactly why bigots in government are trying so hard to impinge upon the right to speak against them, including online. The last thing the people they are trying to hurt need is for the Supreme Court to undermine that freedom. Expressive freedom is what makes it possible to tell Governors DeSantis and Abbott and their ilk to take a hike when it comes to trying to mold the Internet and the world in their bigoted image. Without it the fight against these censorial efforts, and bigotry overall, becomes that much harder, legally and practically, if not impossible.

Deciding the case as it did, by peeling the protection of free expression off from the question of the constitutionality of anti-discrimination law generally, both fortified the defense of expressive freedom and preserved anti-discrimination law. The latter’s destruction may still be a goal of this Court, and someday it may do away with it, but it will require a different constitutional theory and a different case. Following this one, businesses are still not free to discriminate. [p.20]. They still can’t turn away customers based on any protected characteristic of that customer. This decision is solely about the message the business is being asked to convey.

Colorado next urges us to focus on the reason Ms. Smith refuses to offer the speech it seeks to compel. She refuses, the State insists, because she objects to the “protected characteristics” of certain customers. Brief for Respondents 16; see also post, at 26–27, 31–32 (opinion of SOTOMAYOR, J.) (reciting the same argument). But once more, the parties’ stipulations speak differently. The parties agree that Ms. Smith “will gladly create custom graphics and websites for gay, lesbian, or bisexual clients or for organizations run by gay, lesbian, or bisexual persons so long as the custom graphics and websites” do not violate her beliefs. That is a condition, the parties acknowledge, Ms. Smith applies to “all customers.” [p. 17]

The dissent argues that it is easy to couch any discrimination in expressive terms. But that Subway calls its staff “sandwich artists” does not make its subs expression. And the majority acknowledges that, “Doubtless, determining what qualifies as expressive activity protected by the First Amendment can sometimes raise difficult questions.” [p. 21-22] But expression has often been found expansively.

But our precedents endorse nothing like the limits the dissent would project on them. Instead, as we have seen, the First Amendment extends to all persons engaged in expressive conduct, including those who seek profit (such as speechwriters, artists, and website designers). [p. 23]

And even when there are gray areas, resolving those tensions in favor of finding expressiveness ultimately serves those who most need to speak out, whereas weakening the applicability of the First Amendment strips those whom bigots would target of important defenses and empowers those who would do further harm. In this case, had the Court ruled against the web designer because it was displeased with her opinions it would have represented a fundamental change in First Amendment jurisprudence. And with that change limited the expansive protection it had previously been found to provide expression and that people need for it to provide expression in order to be able to push back against those who would use their power to hurt. It also would have provided defensive cover for the DeSantises and Abbotts of the world and undermined the litigation seeking to enjoin their efforts.

For a Court that doesn’t seem to care very much about precedent, ignoring it whenever convenient to serve its cynical ends, it is no small miracle when it doesn’t find a way to curtail a constitutional right the public depends on. But even if in this case the Court may have been motivated to protect a right because this refusal served those cynical priorities, it nevertheless still protected that right, and for everyone, because instead of hobbling them it ultimately sharpened the doctrinal tools needed to fight back against those who would violate it.

It does so as follows:

The decision recognizes code as speech.

Perhaps the most important feature to this decision is its recognition that code can be speech and coding is itself an inherently expressive act covered by the First Amendment. The language reaffirms the Reno v. ACLU decision from nearly thirty years ago, which found that online speech was just as protected by the First Amendment as offline speech, but adds to it the important acknowledgement that speaking comes in more forms than just prose.

[W]e align ourselves with much of the Tenth Circuit’s analysis. The Tenth Circuit held that the wedding websites Ms. Smith seeks to create qualify as “pure speech” under this Court’s precedents. We agree. It is a conclusion that flows directly from the parties’ stipulations. They have stipulated that Ms. Smith’s websites promise to contain “images, words, symbols, and other modes of expression.” They have stipulated that every website will be her “original, customized” creation. And they have stipulated that Ms. Smith will create these websites to communicate ideas—namely, to “celebrate and promote the couple’s wedding and unique love story” and to “celebrat[e] and promot[e]” what Ms. Smith understands to be a true marriage.

A hundred years ago, Ms. Smith might have furnished her services using pen and paper. Those services are no less protected speech today because they are conveyed with a “voice that resonates farther than it could from any soapbox.” Reno v. American Civil Liberties Union, 521 U. S. 844, 870 (1997). All manner of speech—from “pictures, films, paintings, drawings, and engravings,” to “oral utterance and the printed word”—qualify for the First Amendment’s protections; no less can hold true when it comes to speech like Ms. Smith’s conveyed over the Internet. [p. 9-10]

The judicial recognition that the “other modes of expression,” including, presumably, the coded parts of the website were not disqualified from First Amendment protection will matter in all sorts of cases as regulators of all sorts of political stripes try to constrain what the Internet can be, as suits their policy preferences. But even if we just contemplate those attempts (such as by Texas and Florida) to force the Internet to further bigotry, this case is important to those who would be victimized by those efforts because it means that (a) their own coding, including of their own websites, is subject to First Amendment protection, and (b) so is the coding of the platforms they use to facilitate their speech to connect, organize, and push back against hateful ideas. Per the logic of the decision, platforms can’t be forced to code their sites in a way that refuses or subordinates anyone’s message just because government officials, bigoted or otherwise, want them to.

The decision reaffirms that free expression applies to ones own direct expression as well as the facilitation of others’ expression.

In recognizing that code is speech, the Court affirmed that anyone can build their own website. But not everyone with something to say has the skills or other necessary resources needed to make their own website, or say anything in a particular medium where there is an audience they want to reach. Sometimes they need another’s help to facilitate their expression. This decision helps ensure that this help can be available by recognizing that facilitating someone else’s expression can involve an exercise of their own.

We further agree with the Tenth Circuit that the wedding websites Ms. Smith seeks to create involve her speech. Again, the parties’ stipulations lead the way to that conclusion. As the parties have described it, Ms. Smith in tends to “ve[t]” each prospective project to determine whether it is one she is willing to endorse. She will consult with clients to discuss “their unique stories as source material.” And she will produce a final story for each couple using her own words and her own “original artwork.” Of course, Ms. Smith’s speech may combine with the couple’s in the final product. But for purposes of the First Amendment that changes nothing. An individual “does not forfeit constitu tional protection simply by combining multifarious voices” in a single communication. Hurley, 515 U. S., at 569. [p. 10]

Recognizing that the First Amendment applies to every link on the expressive food chain, from direct speakers to the helpers that facilitate their speech, means that not only are website designers protected from having to produce websites for hateful people, but so are any others who provide their expressive services to others, including copywriters, filmmakers, songwriters, portrait painters, or, as the dissent frets, photographers. But this rule is not new; the Court had long ago found that newspapers that can’t be forced to run op-eds written by another favoring discriminatory policies because it would co-opt their expressive services to convey another’s message they didn’t want to convey. The 303 Creative decision simply extends that general principle and also means that even Internet platforms, which Texas and Florida have tried to conscript to make sure that bigots can use them to spread their hatred, cannot be so conscripted either. This decision means anyone can say no to providing their expressive services to those with messages of hate.

The decision makes clear that compelling speech is just as offensive to the Constitution as prohibiting speech.

We often think of the First Amendment as a defense against government censorship, or the silencing of certain speech. This decision makes clear that what the government is trying to do here is compel speech, and that such compulsion also violates the First Amendment.

[T]he government may not compel a person to speak its own preferred messages. See Tinker v. Des Moines Independent Community School Dist., 393 U. S. 503, 505–506 (1969); see also, e.g., Miami Herald Publishing Co. v. Tornillo, 418 U. S. 241, 256 (1974); Wooley v. Maynard, 430 U. S. 705, 714 (1977); National Institute of Family and Life Advocates v. Becerra, 585 U. S. ___, ___ (2018) (NIFLA) (slip op., at 8). Nor does it matter whether the government seeks to compel a person to speak its message when he would prefer to remain silent or to force an individual to include other ideas with his own speech that he would prefer not to include. See Hurley, 515 U. S., at 568–570, 576; see also Rumsfeld v. Forum for Academic & Institutional Rights, Inc., 547 U. S. 47, 63–64 (2006) (FAIR) (discussing cases). All that offends the First Amendment just the same. [p. 8-9].

Imagine what would happen if the Court had not said it does, and that compulsion could be allowed when the government decided the need is strong enough. The freedom to speak is as important as the freedom not to speak, because one way to fight back against odious messages is to not spread them yourself. What this decision says is that governments cannot force anyone to do that spreading.

The decision also pushes back on the idea that commerciality changes the result of the constitutional inquiry.

Articulating this point as unequivocally as it did is significant, and not just in reference to the already pending challenges against the Texas and Florida laws, where commercial platforms are being targeted for their expressive discretion. The reality is that most expression needs to be subsidized in some way, whether via a business model or some other means. If First Amendment protection could decrease when money is involved it would impose a significant burden on the ability on anyone expressing themselves freely, if by being able to afford to engage in that expression could somehow ebb that freedom.

Consider what a contrary approach would mean. Under Colorado’s logic, the government may compel anyone who speaks for pay on a given topic to accept all commissions on that same topic—no matter the underlying message—if the topic somehow implicates a customer’s statutorily protected trait. 6 F. 4th, at 1198 (Tymkovich, C. J., dissenting). Taken seriously, that principle would allow the government to force all manner of artists, speechwriters, and others whose services involve speech to speak what they do not believe on pain of penalty. The government could require “an unwilling Muslim movie director to make a film with a Zionist message,” or “an atheist muralist to accept a commission celebrating Evangelical zeal,” so long as they would make films or murals for other members of the public with different messages. [p. 11-12]

Many courts as of late however have been giving short shrift to that unavoidable reality and finding that having a commercial quality to expression somehow changes the constitutional inquiry to result in lesser First Amendment protection. This decision provides ammunition to push back against that trend.

Of course, as the State emphasizes, Ms. Smith offers her speech for pay and does so through 303 Creative LLC, a company in which she is “the sole member-owner.” Id., at 181a; see also post, at 33 (opinion of SOTOMAYOR, J.) (emphasizing Ms. Smith’s “commercial” activity). But none of that makes a difference. Does anyone think a speechwriter loses his First Amendment right to choose for whom he works if he accepts money in return? Or that a visual artist who accepts commissions from the public does the same? Many of the world’s great works of literature and art were created with an expectation of compensation. Nor, this Court has held, do speakers shed their First Amendment protections by employing the corporate form to disseminate their speech. This fact underlies our cases involving everything from movie producers to book publishers to newspa pers. See, e.g., Joseph Burstyn, Inc., 343 U. S., at 497–503; Simon & Schuster, Inc. v. Members of N. Y. State Crime Victims Bd., 502 U. S. 105, 114–116 (1991); Grosjean v. American Press Co., 297 U. S. 233, 240–241, 249 (1936). [p. 16-17]

Indeed, there is an alarming trend on this front even just in Justice Sotomayor’s jurisprudence from this year alone, in the dissenting opinion here, and a few weeks ago in the majority opinion she wrote in the Warhol copyright case. Both opinions seemed to reflect a belief that the commercial exploitation of expressive acts somehow lessened the protection for that expression. In Warhol she found that a profit motive could be disproportionately dispositive to whether there could be a finding of fair use, a key limit on a copyright’s power the First Amendment requires to ensure that copyright doesn’t damage discourse, and here she expressed concern about business enterprises asserting First Amendment rights over their expressive activities because their expressive business is one seeking to derive profit from the selling of expressive products. In both cases she seems to have been blinded by the fact that the speaker was conducting business involving speech and as a result lost sight of the true issue involved in both cases, which was how law should not be allowed to interact with the substance of the speech’s message.

Because there is nothing in the First Amendment that limits its protection to non-commercial expression, nor could there be given the protection the Court has found previously for newspapers and other profit-motivated entities whose businesses earned money from expression. Nor could there be a rule that the First Amendment only protects individuals. After all, if individuals have the right of free expression, they should retain these rights even when they speak in groups, whether informally or in organizational entities. There is no principled reason why those rights should be extinguished just because individuals have come together to pursue their expression as a group, or for money. If the fact that businesses were involved could lessen the protection of the First Amendment it would not only chill every traditional media enterprise, or Internet business, but also any social movement with a formal organizational structure and operational costs to fund.

The decision stands as a ruling against a government party trying to meddle with private expression.

As we’ve seen with the laws in Texas and Florida, governments can be keen to meddle with online expression. This case reminds that the First Amendment cannot tolerate such meddling.

As surely as Ms. Smith seeks to engage in protected First Amendment speech, Colorado seeks to compel speech Ms. Smith does not wish to provide. As the Tenth Circuit observed, if Ms. Smith offers wedding websites celebrating marriages she endorses, the State intends to “forc[e her] to create custom websites” celebrating other marriages she does not. Colorado seeks to compel this speech in order to “excis[e] certain ideas or viewpoints from the public dialogue.” Turner Broadcasting System, Inc. v. FCC, 512 U. S. 633, 642 (1994). Indeed, the Tenth Circuit recognized that the coercive “[e]liminati[on]” of dissenting “ideas” about marriage constitutes Colorado’s “very purpose” in seeking to apply its law to Ms. Smith. [p. 10-11].

If the Court had ruled otherwise and given a green light to this meddling (in this case, as part of an attempt to curtail hate) there is the danger that it would have the effect of greenlighting other meddling (including those attempts to foster hate). Having a decision saying that, even in the face of a very good reason for government meddling, the government still cannot, helps guard against the next attempt by a government to meddle, which may not be so well-justified. Government officials bent on meddling with expression for damaging reasons are quite adept at packaging up whatever abuse they want to do with some sort of apparent justification, however specious, so a rule that disallows any meddling is therefore much more protective of speech rights than a rule that allows some.

The decision reminds that state interference with free expression requires more than just a compelling purpose.

The dissent is, of course, correct that the government’s purpose in regulating the web designer’s expression is a particularly compelling one, to make sure that none in society are excluded from it due to prejudice against a protected characteristic. Even the majority opinion would seem to concur. [p.12-13]. But having a compelling purpose is not alone enough to allow for the government to impinge upon free expression. To survive the needed judicial scrutiny there must be more to justify this impingement, and here the Court found there was not.

Nor is it any answer, as the Tenth Circuit seemed to suppose, that Ms. Smith’s services are “unique.” In some sense, of course, her voice is unique; so is everyone’s. But that hardly means a State may coopt an individual’s voice for its own purposes. In Hurley, the veterans had an “enviable” outlet for speech; after all, their parade was a notable and singular event. In Dale, the Boy Scouts offered what some might consider a unique experience. But in both cases this Court held that the State could not use its public accommodations statute to deny speakers the right “to choose the content of [their] own message[s].” Hurley, 515 U. S., at 573; see Dale, 530 U. S., at 650–656. Were the rule otherwise, the better the artist, the finer the writer, the more unique his talent, the more easily his voice could be conscripted to disseminate the government’s preferred messages. That would not respect the First Amendment; more nearly, it would spell its demise. [p. 14-15]

As the Court noted, there are other web designers. This decision helps ensure that there can be, because the consequence of allowing any to say no to producing messaging they don’t want, more able to say yes, including to messages speaking against bigotry and abuse, because ensuring that the expressive rights of web designers are protected from government interference means they won’t be afraid to go into business helping people speak if by doing so they can be conscripted to express things they do not want to – including, as Florida and Texas have tried to mandate, messages that further discrimination.

The decision reminds that the applicability of the First Amendment cannot depend on the substance of the expression at issue.

That the Court rejected the justification for the Colorado law as a basis to impinge upon the web designer’s free expression is separately important because it reminds that the law cannot operate against speech based on the content of that speech, which is a traditional component of First Amendment jurisprudence. When the government starts evaluating the content of expression it starts playing the role of an unwelcome censor, deciding which ideas are acceptable and which are not. Indeed, the Court noted with alarm that the very purpose of the government action here was to “eliminate” certain ideas. [p. 20] Which is exactly the problem in Florida and Texas where the attempt to speech police is to favor the ones that victimize.

[T]he dissent refuses to acknowledge where its reasoning leads. In a world like that, as Chief Judge Tymkovich highlighted, governments could force “an unwilling Muslim movie director to make a film with a Zionist message,” they could compel “an atheist muralist to accept a commission celebrating Evangelical zeal,” and they could require a gay website designer to create websites for a group advocating against same-sex marriage, so long as these speakers would accept commissions from the public with different messages. Perhaps the dissent finds these possibilities untroubling because it trusts state governments to coerce only “enlightened” speech. But if that is the calculation, it is a dangerous one indeed. [p. 23-24]

The question this case raises is whether a state can “force someone who provides her own expressive services to abandon her conscience and speak its preferred message instead.” [p. 19]. The dissent fairly argues that the interests of equal protection should be weighed heavily in favor of such a prescription, and there is indeed tension between the constitutional interest in protecting minorities and the constitutional interest in protecting free expression. But such elevation would be an exception from the general rule of content neutrality, and once exceptions start to be made they can easily soon eat the whole. Because if we have a good reason here, we’ll have a good reason there, and pretty soon the right to free expression will be so conditional it won’t be a right anyone can rely upon, no matter how much they need to push back on abusive power, including a censoring one.

A commitment to speech for only some messages and some persons is no commitment at all. By approving a government’s effort to “[e]liminat[e]” disfavored “ideas,” today’s dissent is emblematic of an unfortunate tendency by some to defend First Amendment values only when they find the speaker’s message sympathetic. But “[i]f liberty means anything at all, it means the right to tell people what they do not want to hear.” 6 F. 4th, at 1190 (Tymkovich, C. J., dissenting) (quoting G. Orwell). [p. 25]

This decision also supports the notion that when it comes to challenging the regulation of expression, standing should be very broadly drawn.

Controversy emerged shortly before the decision was issued alleging that the web designer was not actually approached to build a website she didn’t wish to make. It’s a serious charge, but not one that itself impugns this particular result. Part of the reason is because the record supporting the decision was a series stipulations made by the parties, including the state of Colorado admitting that it would enforce its law against a web designer refusing to make a website about a gay marriage. That threat of a potential constitutional injury was enough for both the Tenth Circuit and the Supreme Court to find standing for the web designer’s challenge.

For its part, the Tenth Circuit held that Ms. Smith had standing to sue. In that court’s judgment, she had established a credible threat that, if she follows through on her plans to offer wedding website services, Colorado will invoke CADA to force her to create speech she does not believe or endorse. The court pointed to the fact that “Colorado has a history of past enforcement against nearly identical conduct—i.e., Masterpiece Cakeshop”; that anyone in the State may file a complaint against Ms. Smith and initiate “a potentially burdensome administrative hearing” process; and that “Colorado [has] decline[d] to disavow future enforcement” proceedings against her. Before us, no party challenges these conclusion. [p. 5].

And it is good that they did because having broad ability to bring First Amendment challenges against abusive laws is critical. When it comes to laws that chill expression we don’t want that expression to be chilled first before we’ve had a chance to find that it had been unconstitutional to chill it; we want to make sure that it was never chilled at all. Which means that the people who think they are about to be injured by this sort of state action need to be able to challenge it before they’ve incurred the injury, which means that they need to have the standing to bring the challenge based on prospective injury, rather than only an actualized one.

We’ve also seen how important this sort of broad standing is for vulnerable populations before, such as in the constitutional challenge to FOSTA, where it required the DC Circuit to affirm that the plaintiffs did indeed have standing to bring the lawsuit challenging how FOSTA impinged on their expressive rights. In that case the law had already gone into effect and led to actual injury, but some injury was still prospective and only threatened by state officials. While we’re still waiting on a rule addressing FOSTA’s constitutionality, the challenge would have ended long ago if the plaintiffs had been found not to have standing. Which is why the broad approach to standing taken by the decision in the 303 Creative case is so important, because if the rule were that an injury must always have been accrued before a lawsuit challenging the law could be brought, it would let bigoted governments get away with enforcing their censorial laws to shut down speech against them. Whereas if standing is broad, then the laws might be able to be enjoined before they were able to do their damage.

In sum, whether unwittingly or otherwise, and despite the declared bigotry of this particular plaintiff, with this decision the Supreme Court majority has given everyone, including the most vulnerable among us, some powerful tools to fight those who would victimize them. It did so by continuing to reinforce its long line of cases making clear that the First Amendment protects everyone, from the worst among us to the best, by making sure that we are all protected.

[T]he First Amendment’s protections [do not] belong only to speakers whose motives the government finds worthy; its protections belong to all, including to speakers whose motives others may find misinformed or offensive. See Federal Election Comm’n v. Wisconsin Right to Life, Inc., 551 U. S. 449, 468–469 (2007) (opinion of ROBERTS, C. J.) (observing that “a speaker’s motivation is entirely ir relevant” (internal quotation marks omitted)); National So cialist Party of America v. Skokie, 432 U. S. 43, 43–44 (1977) (per curiam) (upholding free-speech rights of partic ipants in a Nazi parade); Snyder, 562 U. S., at 456–457 (same for protestors of a soldier’s funeral). [p. 17-18]

Even terrible people wishing to express their terrible ideas about other people are protected, whether to express a view they wanted, or, as in this case, to refuse to be forced to express a view they didn’t want to convey. Time and time again the Court has found that the First Amendment’s protection of free expression protects the right of anyone to exercise that expressive discretion, regardless of how odious. And that it must protect that expressive discretion, to leave even the worst people free to say or not say what they choose, for it to protect anyone with more meritorious ideas and leave them similarly free to choose what to say as well.

Thus this decision should be something to cheer, but that inclination to cheer is naturally tempered by the Court’s conspicuous failings. For instance, although a generous rule on standing for First Amendment challenges is a good one, it is not necessarily one the Court has previously adhered to. Historically it has required more tangibility to the prospect of an injury than was available here, requiring an actual case and controversy because typically the Supreme Court has refused to be in the business of rendering advisory opinions. With so few facts in the record to pin this decision on it ends up seeming like an officious Court was just a bit too eager to produce a ruling that, at least on the surface, seemed to stick it to those it disfavored. Even though aggressively asserting jurisdiction here was not necessarily bad given the likely prospect of the threatened injury, and the solid defense of free expression that resulted, which would have been undermined by the Tenth Circuit’s ruling had the Court not reviewed it, it still does feel arbitrary for the Court to have asserted itself here and not in all other similarly situated cases. And it is that arbitrariness that makes all its decisions feel unfair and unjust, even when on their own merits, as here, they are not.

It is similarly hard to credit the result in this case given the animus the Court has expressed in other cases, including some it oddly cited here. After all, Boy Scouts of America v. Dale (allowing the Boy Scouts to discriminate against gays) and FAIR v. Rumsfeld (requiring law schools to let the military recruit on campus even when it was still excluding gays) were cases involving expressive association, which is not quite the same issue present here. (The Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston case, allowing gays to be kept out of a parade by organizers, is also cited, but that was a case where the issues were much more similar to this one, given the explicitly expressive nature of a parade.) The Rumsfeld decision also was one that found an exception to the protection the First Amendment should have afforded, and one the Court seems to have made in furtherance of its own biases.

Which thus raises the following question here: will the protective principles announced in this decision be broadly applied, even to litigants with which the Court doesn’t agree, or will the Court instead in the future find some specious basis to refuse to invoke them because it prefers the result denying them would bring? It is a serious question that this Court only has itself and its increasingly inconsistent adherence to precedent to blame for prompting.

But whether the Court might someday eat its words does not mean that these words in this decision were not the right words for the moment. Even if this Court were to someday abandon them, in the meantime they provide every other court with guidance to ensure that they, too, in matters before them, protect free expression from attacks by government, including those who would attack it to further their bigotry.

Filed Under: 1st amendment, bigotry, code is speech, colorado, compelled speech, free speech, scotus, supreme court, websites, wedding websites
Companies: 303 creative

The First Amendment Needs To Protect Everyone (Even Homophobic Web Designers) To Protect Anyone

from the everyone-is-getting-this-case-wrong dept

In writing online about a case about online expression, I’ll open with a reference to some more online expression: the popular meme featuring the caption, “The worst person you know just made a great point.” And that’s where we are with this case just heard by the US Supreme Court: 303 Creative v. Elenis, where a homophobic website designer does not want to be forced by Colorado law to have to make websites for same sex weddings.

And she should not be forced to, because no matter what one thinks of her, or her views on gay marriage, the First Amendment should prevent anyone from ever being forced by the government to make a website they don’t want to make. It should prohibit such compelled speech regardless of the views implicated, their political popularity, or their social, moral, or ethical merit. And by “should” it is not merely a question of what the First Amendment ought to do, but, as discussed below, what the Supreme Court has already found it to do, and therefore should continue to find it to do.

So hers should not be a hard case to resolve in her favor. Unfortunately, as oral argument revealed, the heightened emotions surrounding her specific views, both for and against, are making it a hard case. By treating it as a referendum on gay rights the First Amendment analysis is ending up unduly complicated, entangled in questions about other constitutional rights, including several others found within the First Amendment itself, even though they only serve to obscure the otherwise obvious constitutional problem with the Colorado law. And one danger with this case is that, if the justices don’t tease apart the different analytical threads successfully, they could do some real doctrinal damage to all the rights the First Amendment protects, especially if they are motivated, as they adjudicate her constitutional challenge, to craft a result that tries to vindicate (or repudiate) the substance of this particular web designer’s views.

For instance, the subject of gay marriage often tends to invoke the First Amendment right of freedom of religion. But this right would be a bad basis upon which to resolve this case. Part of the reason it would be a bad idea is because the Supreme Court has, of late, already upended long-standing establishment clause doctrine to effectively preference certain religious views over others. A ruling in her favor for religious freedom reasons would continue that practice and produce an unstable result (and, at this point, so would a ruling against her, also on this basis). It would also be unnecessary to involve freedom of religion because there are far more compelling constitutional reasons to find in her favor. The only thing religion has to do with this case is that it turns out to be what informs her expressive views. But none of her views, or what informs them, is actually relevant. Because any law that targets these particular views (anti-gay marriage) could just as easily target any other views (for example, pro-gay marriage), regardless of what motivation informed them, religious or otherwise. And even if the court were to say that laws can’t target views informed by religion, it would still be a problem if laws could target views informed by any other reason. Even framed just in terms of online expression, either people are free to choose what websites to make, or they are not. If we instead hinge that freedom to choose what websites to make, or what views to express within them, on why people would make those expressive choices, then the constitutional right for people to choose what they want to say, whether through their websites or via any another expressive means, will already have been lost.

Meanwhile, another analytical red herring for the Court to resist here is the First Amendment right of freedom of association. It may however at first seem relevant because this right is often implicated where there are questions of discrimination, particularly in the offering of goods and services, because the freedom of association, which essentially is the right to discriminate, is often in tension with the right not to be discriminated against. The Court spent much of the oral argument exploring whether a professional web designer could refuse to provide web design services, but this line of analysis, important though it is in other contexts, is an irrelevant distraction here. One key reason it doesn’t belong here is because there appears to be evidence that the web designer in fact does provide design services to gay clientele; the issue in this case is only that she does not want to code websites celebrating gay weddings she does not wish to celebrate (or, indeed, potentially any even heterosexual wedding she also does not wish to celebrate), and regardless of the sexual orientation (or race, or religion, etc.) of the party contracting for her services. In other words, this case is only about the Colorado law trying to require her to create certain online expression she doesn’t want to create – it has nothing to do with her not wanting to serve any clientele she wasn’t inclined to serve, at which point contemplating the bounds of her right of association would be more salient. But here the issue is not about whom she wants to associate with but what she wants to say for them. While the Supreme Court might have the appetite to address now how public accommodations law needs to behave in the shadow of this First Amendment associative right, especially with respect to the provision of personal services, it is important for it to resist that temptation here. It is only the issue of mandated expression that is worth the Court’s attention and ripe for adjudication.

And it is indeed ripe: while some have criticized the pre-enforcement challenge of the Colorado law, because ordinarily a plaintiff can only challenge a law that has already caused an injury, standing doctrine has long recognized how constitutionally untenable it would be to allow laws to create expressive injury and then have the courts say “oops.” When it comes to free expression, pre-enforcement challenges are often necessary and therefore permitted. While some justices fretted at oral argument that the pre-enforcement challenge left only a sparse record for review, it is independently important for the Supreme Court not to be deterred by the posture of this case and to reaffirm the ability to bring pre-enforcement challenges of laws that threaten free expression.

Especially because, at its core, this case is only a speech case. Ultimately the constitutional admonition to “make no law… abridging the freedom of speech” is the only part of the First Amendment that should be operative here, to prohibit the Colorado law and protect the speech rights of any web developer anywhere. Whether, however, the Court zeroes in on it will depend on whether it can recognize the speech issues implicated by website design and how expressive the act of coding a website is, including through the acts of generally authoring it as a vehicle for conveying certain expression and also literally writing the code that conveys it. And we all need to hope that it does, because one of the other significant dangers with this case is that if the Court does not acknowledge the speech impingements at the heart of this case, or see coding a website as somehow less expressive an activity than, say, typesetting a newspaper, it would then leave online expression much less constitutionally protected than offline expression (including for the online version of the newspaper). Per the Court in Reno v. ACLU, online expression is not supposed to be less protected. But unless it sees the Colorado law as being the equivalent of the old Florida law that had once tried to force newspapers to run op-eds it did not want to run – which the Supreme Court in Miami Herald v. Tornillo found was unconstitutional – it will be less protected. (And perhaps worse, it could turn Tornillo on its head and now open the door to a state law that wants to force the Miami Herald to run op-eds celebrating gay marriage. Or, if it could do that, then potentially it could also invite laws requiring op-eds condemning gay marriage too.)

Thus no matter how worthy the pro-marriage view, the bottom line in this case is that it is a view that law would be trying to force people to express, and it is that forcing that should be anathema to the First Amendment’s free expression clause. For good reason, too, because a less robust First Amendment doesn’t just hurt the views that we should detest; it also makes vulnerable those views that are best. It is why the Supreme Court was right to find the First Amendment protected the right of Nazis to march in Skokie despite their odious views, and it is why it also should find the First Amendment protects the right of the web designer to maintain her bigotry here, because even if the First Amendment is found in a particular case to protect the expression of a hateful view, what it is actually doing is ensuring that everyone remains equally free to stand against it. After all, this case isn’t just about this web designer and her intolerant views; it is about making sure that no one ever need to fear being forced by law to express any message about which they disagree, including hateful ones they don’t share.

And so we cannot let our relative opinion for the litigants who have brought these constitutional concerns before the Court outweigh our concern for the constitutional principles at stake. Nor can the Court itself, regardless of whether any particular justice favors or disfavors the web designer’s particular animus. Instead the Court needs to keep its focus on how laws like Colorado’s impinge on the rights of free expression everyone depends on, no matter what their views.

Filed Under: 1st amendment, free speech, gay marriage, supreme court, websites, wedding websites
Companies: 303 creative

Verizon Again Doubles Down On Yahoo After 6 Years Of Failure

from the telecoms-can't-innovate dept

Wed, Mar 24th 2021 10:51am - Karl Bode

You might recall that Verizon’s attempt to pivot from grumpy old telco to sexy new Millennial ad brand hasn’t been going so well. Oddly, mashing together two failing 90s brands in AOL and Yahoo, and renaming the coagulated entity “Oath,” didn’t really impress many people. The massive Yahoo hack, a controversy surrounding Verizon snoopvertising, and the face plant by the company’s aggressively hyped Go90 streaming service (Verizon’s attempts to make video inroads with Millennials) didn’t really help.

By late 2018 Verizon was forced to acknowledge that its Oath entity was effectively worthless. By 2019, Verizon wound up selling Tumblr to WordPress owner Automattic at a massive loss after a rocky ownership stretch. Throughout all of this, Verizon has consistently pretended that this was all part of some amazing, master plan.

Those claims surfaced again this week with Verizon announcing that the company would be doubling and tripling down on the Yahoo experiment. For one, the company is launching Yahoo Shops, “a new marketplace destination featuring a curated, native shopping experience tailored to the user including innovative tech, from shoppable video to 3D try-ons, and more.” It’s also shifting its business model to focus more on subscriptions through Yahoo Plus, hoping to add on to the 3 million people that, for some reason, subscribe to products like Yahoo Fantasy and Yahoo Finance.

Again though, all of this sounds very much like unsurprising and belated efforts to mimic products and services that already exist. While surely somebody somewhere finds these efforts enticing, that this is the end result of its 4.48billionYahooacquisitionin2017,andits20154.48 billion Yahoo acquisition in 2017, and its 2015 4.48billionYahooacquisitionin2017,andits20154.4 billion acquisition of AOL is just kind of…meh. It’s in no way clear how Verizon intends to differentiate itself in the market, and people who cover telecom and media for a living continue to find Verizon’s persistence both adorable and amusing:

Truly nothing is funnier than phone companies doing media

— nilay patel (@reckless) March 23, 2021

Again, as companies that have spent the better part of a generation as government-pampered, natural monopolies, creativity, competition, innovation, and adaptation are alien constructs. Both AT&T and Verizon have thrown around countless billions at trying to become disruptive players in new media and advertising, and the end result has been nothing but a parade of stumbles. In fact AT&T’s probably been a better poster child for this than even Verizon, given it spent $200 billion on megamergers only to lose around 8 million TV subscribers in just a few years. Growth for growth’s sake isn’t a real strategy.

The ultimate irony is that both companies even managed to successfully convince regulators at the FCC to effectively self-immolate, and even that couldn’t buy either company the success they crave believe they’re owed. Neither did the billions in money gleaned from the Trump tax cuts, which resulted in more layoffs than innovation. There are oodles of lessons here for those looking to learn from them, but absolutely no indication that’s actually going to ever happen.

Filed Under: content, media, websites, yahoo
Companies: verizon, yahoo

How Landmark Technology's Terrible Patent Has Survived

from the stupid-patent-of-the-decades dept

Stupid Patent of the Month

There?s an increasing insistence from the highest echelons of the patent world that patent abuse just isn?t a thing anymore. The Director of the U.S. Patent Office, Andre Iancu, has called patent trolls?a term for companies that do nothing but collect patents and sue others?mere ?monster stories,? and suggested in a recent oversight hearing that it was simply name-calling.

But whatever you call them?trolls, non-practicing entities, or patent assertion entities?their business model, which involves stockpiling patents to sue productive companies rather than making goods or services, continues to thrive. It?s not hard to find examples of abusive patent litigation that make clear the threat posed by wrongly-issued patents is very real.

Take, for instance, the patents that Lawrence Lockwood owns. These patents have been used to sue companies, large and small, for nearly 20 years now. Through his company Landmark Technologies and his earlier company PanIP, more than 100 lawsuits have been filed against businesses?candy companies, an educational toy maker, and an organic farm, to name a few. Because these companies engage in ?sales and distribution via electronic transactions,? or use an automated system ?for processing business and financial transactions,? Landmark says they infringe one of its patents.

Those lawsuits don?t account for the other companies that have received licensing demands, but have not been sued in court. The numerous threats made with Lockwood?s patents are made clear both by news accounts of Lockwood?s activity, as well as the several small business owners that have reached out to EFF after being targeted by Lockwood?s patents.

Patent Office records show Lockwood first applied for a patent in 1984, but his litigation ramped up after he acquired U.S. Patent No. 6,289,319 back in September 2001. The document describes an ?automatic business and financial transaction processing system,? which Lockwood has interpreted to give him rights to demand licensing fees from just about any web-based business. Upon receiving that patent, Lockwood promptly sent 100 letters to various e-commerce businesses, demanding $10,000 apiece. When that didn?t work, he started filing lawsuits.

For more than 15 years now, some companies have been paying thousands of dollars to license Lockwood?s patents rather than pay the legal fees required to defend themselves. Hiring attorneys to fight the patents would have cost far more, and Lockwood was keenly aware of this leverage.

?Do they really want to spend $1 million and two years of their life to invalidate a patent they can license for a couple thousand dollars?? Lockwood said in 2003, speaking to a Los Angeles Times reporter about his lawsuits. ?People get divorced over this stuff. They have strokes over this.?

Sixteen years and more than 100 lawsuits later, stress and the expenses continue to mount for Lockwood?s targets. Through Landmark, Lockwood continues to demand money from businesses that provide basic e-commerce, although his price has gone up. Companies targeted by Landmark Technology patents in recent years have shown demand letters [PDF, PDF] indicating the company now demands around $65,000 to avoid a lawsuit.

Not a single court has ever weighed in on the merits of Lockwood?s patent claim, according to court papers [PDF] filed in 2017 by one of his targets.

Despite some court rulings that have helped cut back patent trolling over the years, nothing has slowed down Lockwood?s broad assault on Internet commerce. This year, through a newly created company called ?Landmark Technology A,? Lockwood?s patent no. 7,010,508?related to the ?319 patent that came before it?has been used to sue two more companies: a specialty bottle-maker in south Seattle, and an Ohio company that sells safety equipment.

Based on Landmark?s history, it?s unlikely these two lawsuits will be the last.

Continuations and Consequences

How did this happen, and how does it continue? Lockwood applied for his first solely-owned patent in 1984, getting it two years later. It describes a network of ?information and sales terminals? that could ?dispens[e] voice and video information, printed documents, and goods,? accepting credit card payments. There?s no evidence Lockwood developed any such network or even had the ability to do so. In fact, Lockwood, a former travel agent, reportedly admitted during a deposition that he had never used a personal computer ?for any length of time,? according to the 2003 Los Angeles Times profile.

In the mid-90s, Lockwood sued American Airlines for patent infringement, seeking to collect royalties on its SABRE flight reservation system, which he claimed infringed three of his patents. He lost that case when, in 1997, an appeals court agreed with the district court that his patent claims were not infringed and were invalid.

That wasn?t the end of Lockwood?s efforts to make money through patent litigation, though. He continued to get more patents, acquiring Patent No. 6,289,319 in 2001, and 7,010,508 in 2006. Both patents have been used in more than 85 lawsuits, according to the LexMachina legal database. He was able to get those patents despite the fact that they were based on a patent that had been found invalid. Even better for Lockwood, he was allowed to use the ?priority date? of the earlier patent. That means the only prior art that could be used to invalidate the patent would have to be from earlier than that priority date?May 24, 1984.

Led by a family-owned chocolate shop, a group of small businesses banded together to share legal costs and fight Lockwood?s PanIP. When they put up a website about PanIP?s abuse of the system, Lockwood sued the owner of the chocolate shop for defamation and trademark infringement.

The ?319 patent, which is richly deserving of our ?Stupid Patent of the Month? award, was issued because of a problem we?ve spoken about before?abuse of the continuation process.

The Patent Office allows applicants to file ?continuation? applications with new claims, as long as they?re based on what was disclosed in previously-filed applications. This creates opportunities for applicants to game the system and get patents on advances they could not have developed. For example, even though Lockwood applied for the ?319 patent in 1994, it?s a continuation of the original 1984 application?which means that only prior art from 1984 or earlier can be used to invalidate it.

Landmark?s complaints demand money from operating businesses, claiming that because their systems process ?business and financial transactions between entities from remote sites,? they infringe the ?319 patent. Their recent complaint [PDF] against Illinois-based Learning Resources, Inc. includes a claim chart [PDF] explaining the alleged infringement, which is a 42-page detailed chart that describes using a computer to order a toy on the defendant?s website.

That chart makes clear that Landmark?s patent doesn?t claim any particular technological advance?just the basic idea of transmitting data between networked computer terminals.

This patent should be invalid under Section 101 of the patent laws for failing to claim an actual invention. At best, it describes basic computer technology?like an ?on-line means for transmitting said information, inquiries, and orders?? to exchange information, and respond to orders. That is a ubiquitous and essential part of e-commerce, not a patent-eligible invention.

Right now, lobbyists are pushing for a wholesale re-write of Section 101, which is the best chance of stopping patents like this one early enough in a case to avoid spending hundreds of thousands of dollars on lawyers and expert witnesses. Drastic alterations to Section 101 could leave targets of Landmark in an even worse position?in order to get out of a multi-million dollar lawsuit, they?ll have to find published, pre-1984 prior art describing the precise, nearly indefinable contours of Lockwood?s ?invention,? and invest huge sums on prior art investigations as well as expert witness reports.

Before lawmakers distort Section 101 so that it?s nearly useless, they should consider campaigns like Landmark?s. It involves an ?inventor? who?s long been focused on litigating patents, not creating new innovations?and who admits to leveraging the high cost of litigation defense against small businesses. Lowering the bar for patent-eligibility even further will do far more to threaten innovation than encourage it.

Reposted from EFF’s Stupid Patent of the Month series.

Filed Under: lawrence lockwood, patent trolls, patents, websites
Companies: landmark technology, panip

Dangerous Court Ruling Says Colleges May Be Required To Block Access To Certain Websites

from the free-speech? dept

Over the past few years, there have been a number of debates and legal fights concerning questions around Title IX and due process. Title IX of the Education Amendments Act of 1972 is supposed to protect people in educational settings from sex discrimination. It has been interpreted in some questionable ways, lately, with regards to the due process of anyone accused. But, now it’s also impacting some other areas as well. The folks at FIRE highlight a fairly horrific appeals court ruling in the 4th Circuit, overturning a lower court ruling (that had dismissed the case), saying that a university might be required to ban access to certain websites under Title IX.

The case was filed against the University of Mary Washington, claiming Title IX violations from some students/student groups. While the court leaves some of the claims dismissed, it reinstates a specific Title IX claim that is quite worrying. As FIRE’s Samantha Harris explains first the background of the case:

The case, Feminist Majority Foundation v. University of Mary Washington, stems from a series of events that roiled UMW?s campus back in 2015. At the time, members of the UMW student group Feminists United on Campus (a local affiliate of Feminist Majority Foundation) were speaking out about several issues on campus, including the student senate?s decision to authorize fraternities as well as a bawdy rugby chant that several members of UMW?s men?s rugby team were recorded singing at an off-campus party. Following their advocacy, FUC members found themselves the targets of online hostility, particularly on a now-defunct platform called Yik Yak that allowed users within a certain geographic radius to post anonymous messages. FUC complained about this repeatedly to the UMW administration, and after they found UMW?s response to their complaints to be lacking, they first filed a complaint with the U.S. Department of Education?s Office for Civil Rights and then, ultimately, a federal lawsuit.

The lawsuit claims that UMW discriminated against the plaintiffs, in violation of Title IX, by responding with deliberate indifference to their claims of peer harassment, and by allowing UMW students to retaliate against the plaintiffs for filing an OCR complaint. The suit also alleges that former UMW president Richard Hurley retaliated against the plaintiffs by publicly defending the university against their allegations of discrimination.

The lower court dismissed the case, but here the 4th Circuit brings back a large component of it in a very troubling manner. Basically, by saying that since the University provided internet access to sites where harassing content could be found (on the third party app Yik Yak), the University was potentially liable:

The Complaint alleges that much of the harassment occurred through Yik Yak. Although that harassment was communicated through cyberspace, the Complaint shows that UMW had substantial control over the context of the harassment because it actually transpired on campus. Specifically, due to Yik Yak?s location-based feature, the harassing and threatening messages originated on or within the immediate vicinity of the UMW campus. In addition, some of the offending Yaks were posted using the University?s wireless network, and the harassers necessarily created those Yaks on campus. Moreover, the harassment concerned events occurring on campus and specifically targeted UMW students….

Furthermore, to the extent the sexual harassment was communicated through UMW?s wireless network, the Complaint alleges that the University could have disabled access to Yik Yak campuswide. The Complaint also alleges that the University could have sought to identify those students using UMW?s network to harass and threaten Feminists United members. If the University had pinpointed the harassers, it could then have circumscribed their use of UMW?s network. Indeed, it is widely known that a university can control activities that occur on its own network. A university may, for example, bar a student caught downloading music or movies in violation of copyright laws from accessing its network.

Ah, there’s that copyright creep situation again. It’s annoying when the average clueless joe says something along the lines of “well, if you can kick people offline for copyright, why not x…” but having a Federal Appeals Court Judge say it is really frustrating.

But think about what the court is saying here. Because this happened via the university’s network (even on an app totally unrelated and out of the control of the university), the university can still be blamed for not blocking it. That’s… crazy. That means that a university would need to proactively police the entire internet to stop anyone from saying anything harassing — and if they come across anything or are told of anything, they’d be required to block access to that site or app entirely for all students. How is that reasonable?

The court also rejects the fact that the university had no way of figuring out who posted the “offending Yaks.” Yik Yak (which went out of business last year) was always entirely anonymous. But the court doesn’t seem to care:

To the extent the University contends it was unable to control the harassers because the offending Yaks were anonymous, we readily reject that proposition. The Complaint alleges that the University never sought to identify the students who posted the offending messages on Yik Yak, even though some of those messages were facilitated by (i.e., posted through the use of) UMW?s network. Nor did the University ever ask Yik Yak to identify those users who had harassed and threatened UMW students. The University cannot escape liability based on facially anonymous posts when, according to the Complaint, UMW never sought to discern whether it could identify the harassers.

The dissenting opinion in the ruling clearly sees the problematic impact of all of this:

Make no mistake, the majority?s novel and unsupported decision will have a profound effect, particularly on institutions of higher education, until the Supreme Court reaffirms that Davis means what it says. Institutions, like the University, will be compelled to venture into an ethereal world of non-university forums at great cost and significant liability, in order to avoid the Catch-22 Title IX liability the majority now proclaims. The University should not hesitate to seek further review.

The case is far from over (and FIRE also notes that there’s a separate issue of whether or not the content was even harassing in the first place, that hasn’t even been considered yet). But the implications here are huge and really damaging.

Filed Under: 4th circuit, blocking, censorship, harassment, title ix, websites
Companies: university of mary washington, yik yak

Sex History Educational Site Wants To Know If It's Going To Be Bricked Up Behind UK's Porn Wall

from the are-you-old-enough-to-LEARN? dept

As the UK’s porn filter move from “voluntold” to mandatory, questions are being raised (again) about the potential for overblocking. As is the case with any filtering system, things that should be allowed to go through sometimes end up caught in the netting.

In addition to the opt-out porn filtering system in place at UK internet service providers, the government is also demanding any site that meets its vague definition of pornographic verify users’ ages before allowing them access. This will apparently be tied to credit cards and/or mobile phones, so the government can strip porn viewers of anonymity it will be slightly more difficult for the under-18 crowd to avail themselves of over-18 web goodies. (But not really.)

Because the blockaded content is so vaguely defined, education sites — like the Whores of Yore site — are likely to end up on the government’s ID-please naughty list.

_Whores of Yore is a website, run by academic Kate Lister, which describes itself as follows: “We are proudly sex-positive. An inter-disciplinary, pro-sex worker rights hub, dedicated to exploring the history of human sexuality and challenging shame and stigma._”

The site is slightly NSFW but not really the sort of thing that should be targeted when targeting porn. Unfortunately, the UK government prefers shotguns to sniper rifles and is apparently comfortable with collateral damage. The provision — tied up with lots of other stupid/bad stuff in the Digital Economy Act — says anything covered the government’s R18 and 18 certificates (roughly XXX and R-rated, respectively) will need to be blocked with a government-ordained registration wall. Harder porn is covered by the R18. The 18 certification covers simple things like nudity, if the government decides the content is “titillating.”

There certainly are some titillating things at Whores of Yore, but there’s also a great deal of educational material. Concerned her site might be blocked, Lister asked the blocking government body directly for its view on her site’s content. Results were inconclusive.

So Kate contacted the BBFC, the UK’s soon-to-be Internet censor with a simple question: will she be a criminal, and will her site be blocked, under the new regime? After all, these rules are set to become law within a few months, and have been under discussion for years. Predictably, the BBFC responded to say they simply can’t answer:

“Work in this area has not yet begun and so we are not in a position to advice [sic] you on your website. Pages 23 and 24 of our Classification Guidelines detail the standards applied when classifying sex works at 18 and R18 however and may be of interest to you.”

In other words, the censoring agency has no idea. It simply asks questioners to read the same guidelines it will apparently be enforcing. As Lister says, reading the guidelines in hopes of finding clear delineations in content regulation is “about as useful as a chocolate dildo.” Given this non-response, it’s safe to assume when the blockade goes live, writers might need to search for less titillating metaphors if they’re not behind an age verification wall.

Filed Under: porn, porn filter, porn wall, sex education, uk, websites

University Puts 20,000 Lectures Behind A Registration Wall In Response To DOJ Pressure On Website Accessibility Compliance

from the nobody-wins dept

Back in 2012, a federal court ruled US websites were “places of public accommodation.” The ruling (overturned on appeal) came in a lawsuit brought against Netflix by the National Association of the Deaf. It seems like an obvious conclusion — more people get their information, news, and entertainment from the web than other sources. But the ruling had plenty of adverse consequences, especially for smaller, less profitable purveyors of online content.

Professor Eric Goldman — who analyzes a ton of internet-related lawsuits — had this to say at the time:

If websites must comply with the ADA, all hell will break loose. Could YouTube be obligated to close-caption videos on the site? (This case seems to leave that door open.) Could every website using Flash have to redesign their sites for browsers that read the screen? I’m not creative enough to think of all the implications, but I can assure you that ADA plaintiffs’ lawyers will have a long checklist of items worth suing over. Big companies may be able to afford the compliance and litigation costs, but the entry costs for new market participants could easily reach prohibitive levels.

The payoff of this lawsuit — along with the federal government’s requirements for making websites “accessible” — is finally here. A California university is placing 20,000 audio and video lectures behind a registration wall, making them less accessible to everybody, rather than risk being sued for not making them “accessible” to those with disabilities.

The University of California, Berkeley, will cut off public access to tens of thousands of video lectures and podcasts in response to a U.S. Justice Department order that it make the educational content accessible to people with disabilities.

Today, the content is available to the public on YouTube, iTunes U and the university’s webcast.berkeley site. On March 15, the university will begin removing the more than 20,000 audio and video files from those platforms — a process that will take three to five months — and require users sign in with University of California credentials to view or listen to them.

This move has more to do with the DOJ’s ADA* accessibility stance, although that stance roughly aligns with the court’s 2012 findings. The DOJ is named specifically in the university’s statements as being the impetus for it locking up its past content. Future releases will be issued with an eye on compliance, but past lectures are gone for good unless you happen to have the right credentials to view them.

*[This acutally stems from the FCC, not the ADA. Nate Hoffelder has more details in the comments. UPDATE: never mind.]

Then there’s this part of the university’s statement, which hints it may not all be related to accessibility-compliance.

Finally, moving our content behind authentication allows us to better protect instructor intellectual property from ‘pirates’ who have reused content for personal profit without consent.

I’m not sure how much of a problem Berkeley has had with content piracy. This statement could mean it’s rampant or could simply mean it’s something the university’s lawyers have mentioned in passing as a concern. Either way, the move is related to control. What the public can’t see, it can’t complain about. And that keeps the DOJ at bay, even if it does little for the general public.

However, the piracy part of the statement might become relevant in the near future. It also shows the university’s spokesperson isn’t aware most of the lectures can’t be “pirated.” LBRY.io has already mirrored the 20,000 files due for removal, and it notes its move is compliant with the terms governing the sharing and distribution of the recorded lectures.

The vast majority of the lectures are licensed under a Creative Commons license that allows attributed, non-commercial redistribution. The price for this content has been set to free and all LBRY metadata attributes it to UC Berkeley.

The university may have a point about “personal profit,” but simply hosting lectures at a site that sells stuff or makes money from ads isn’t the same thing as “reusing content for personal profit.” And the license the university uses doesn’t require permission beforehand.

In the end, what we have is another regulation failure, where best laid plans become self-sabotaging debacles. Attempting to make the web universally-usable is an impossibility. No one’s going out of their way to cut the deaf or blind out of the international conversation, but demanding all US sites be compliant with the DOJ’s requirements is like demanding all books be made available in Braille and audio format. It’s something only a few publishers can afford to do. Even fewer can afford to engage in a legal battle with the federal government over a lack of compliance, which means increased enforcement efforts will only result in less available content. That does nothing to level the playing field for Americans with disabilities.

Filed Under: ada, compliance, doj, websites
Companies: uc berkeley

Nick Denton Bucks The Trend Du Jour, Thinks News Comments Are Worth Saving

from the baby,-bathwater dept

Wed, Jul 20th 2016 04:23pm - Karl Bode

Last week, new New York Times public editor Liz Spayd said something completely and utterly crazy: she suggested that news outlets and websites should actually listen to and interact with their visitors in news comment sections. Given this is the age where most “enlightened” media outlets are now closing their comment sections and pretentiously pretending it’s because they “value conversation,” Spayd’s comments were treated like the incoherent ramblings of a mad woman on some fronts, people claiming actually caring about readers was a form of “phony populism” and the “willfully naive” rhetoric of a bygone era.

But we’ve noted time and time again that by muzzling them or shoveling off your community to the homogonized blather of Facebook, you’re pretty clearly saying you don’t think your audience really matters. Countless editors refuse to believe this, by and large because nobody at a multi-million dollar media empire wants to actually have real conversations with the dirty plebeians they profess to be so selflessly dedicated to. The entire mechanism should be demolished, they argue, because commenters are mean and say bad things — ignoring studies suggesting this can be easily fixed by giving a damn.

Nick Denton, likely overjoyed to talk about something other than Peter Thiel, last week indicated he’s among this “willfully naive” minority that believes news comments are worth saving. Regardless of whether or not you like the Gawker empire, Denton makes it clear that maintaining communication with the company’s customers is not only common sense, but embracing on-site comments makes money:

“The key is to distribute the moderation, to make every editorial team responsible for the discussions that their stories instigate. It?s not that hard?though it took several years and several million dollars for us to get it right. The commitment to quality discussions was one of the smartest decisions we made. In economic terms, we see a payoff not just in greater editorial leverage, but in time spent on page. On mobile, for instance, we outperform the other publishers by more than half: 81 seconds compared with a Google Analytics benchmark of 53 seconds. I think that?s largely because the pages are more interesting, for longer.”

Again, it’s worth noting that while Gawker spent a significant amount of money on its Kinja commenting platform with some mixed results, data has suggested that just having writers show up to talk can have a profound impact on the quality of comments. But Denton also focuses on the fact that stifling the inherent bi-directional communication nature of the Internet is just dumb, and many outlets just don’t like comments because they advertise errors made in their reporting or commentary:

“Above all, this is just the way that Internet news should be. Why wouldn?t you want to tap the opinions and expertise of your readership? Unless you are embarrassed by them.”

Despite all the media’s bluster about social media being an adequate replacement for an “unsavable” comment section, the reality is many bigger media brands just don’t like having real human beings pointing out when they’re wrong in such an obvious and public fashion. If you’ve spent any time writing on the Internet, you probably know that the comment section, warts and all, is also stocked with some very bright people with wide ranging expertise who’ll often provide invaluable corrections. Possibly right after they make a joke about your mom, but still.

Throwing out the entire concept of on-site comments because a jackass said something mean or pointed out you were wrong about something has never been much of a solution. Subsequently claiming you muzzled your customers because you wanted to “build relationships” and “value conversation” only informs these muted community members you also think they’re all incredible, irredeemable morons. If that’s the brand message you’re actually pursuing in your quest to nab more advertising eyeballs? Phenomenal job.

Filed Under: comments, liz spayd, nick denton, websites
Companies: gawker

Newt Gingrich: Merely Visiting An ISIS Or Al Qaeda Website Should Be A Felony

from the say-what-now? dept

Former Speaker of the House Newt Gingrich is making some news today for some silly remarks he made on Fox News last night in response to the attack last night in Nice, France. It comes right at the beginning of this video:

All of the press — for good reason — is focusing on the first part of what he said, about deporting anyone “of Muslim background” (whatever that means) who “believes in Sharia.” We’ll skip over why this is totally clueless and unconstitutional, because plenty of other news sites are handling that.

Instead, we’ll move on to the second craziest thing he said, right after that first statement, which is something that fits much more with Techdirt’s usual themes: Gingrich then claims two ridiculous things, each only slightly less ridiculous than his first statement:

Anybody who goes on a website favoring ISIS, or Al Qaeda, or other terrorist groups, that should be a felony and they should go to jail. Any organization which hosts such a website should be engaged in a felon. It should be closed down immediately. Our forces should be used to systematically destroy every internet based source…

He then goes on to note that if we can’t take them off the internet, we should just kill them all. Which, you know, I’m sure won’t anger any more people against us.

Either way, this is idiotic. Merely visiting a website should put you in jail? What if you’re a journalist? Or a politician? Or a researcher trying to understand ISIS? That should be a felony? That’s not how it works. This also assumes, idiotically, that merely reading a website about ISIS will make people side with ISIS. It’s also not, at all, how the law works. Same with the second part about it being a felony to host such content. We’re already seeing lawsuits against social media sites like Facebook, Twitter and YouTube for hosting accounts from ISIS, and many are voluntarily taking down lots of those accounts. But making it a felony to keep them up? That’s also not how the law works.

Reacting to a very real problem with stupid unconstitutional solutions suggests someone who has no clue what he’s doing.

Filed Under: al qaeda, free speech, hosting, intermediary liability, isis, newt gingrich, sharia, websites