US Censorship News

Last month, a California judge tentatively ruled that he would dismiss charges lodged by California's attorney general against Backpage.com's chief executive and two of its former owners. After an interim scare, the judge has now issued a final judgement confirming the previous ruling and the charges have been dismissed.

The CEO, Carl Ferrer was charged with pimping a minor, pimping, and conspiracy to commit pimping in connection to online advertisements posted on the online ads portal. California's attorney general  Kamala Harris claimed that advertisements amounted to solicitation of prostitution.

However Judge Michael Bowman agreed with the defendants, including former owners Michael Lacey and James Larkin, that they were protected, among other things, by the Communications Decency Act, and hence they were not liable for third-party ads posted by others. The ruling said:

By enacting the CDA, Congress struck a balance in favor of free speech by providing for both a foreclosure from prosecution and an affirmative defense at trial for those who are deemed an internet service provider.

Update: Double Jeopardy

26th December. See  article from theguardian.com

California attorney general Kamala Harris is pursuing new charges against Backpage.com website

The fresh charges, which attorney general Kamala Harris claims are based on new evidence, come after an earlier case against the website was thrown out of court.

The website advertises escort services and seems t have wound up Harris who claimed that the site operated a hotbed of illicit and exploitative activity .

Harris said she had charged Backpage executives Carl Ferrer, Michael Lacey and James Larkin with 13 counts of pimping and conspiracy to commit pimping. They also are charged with 26 counts of money laundering. In the latest case, filed in Sacramento County superior court, Harris claims Backpage illegally funnelled money through multiple companies and created various websites to get around banks that refused to process transactions. (This does not seem a particularly surprising, or necessarily bad thing to do).

She also alleged that the company used photos of women from Backpage on other sites without their permission in order to increase revenue and knowingly profited from the proceeds of prostitution. And from what Harris said in a statement it seems that hers is a morality campaign against sex work. Harris said:

By creating an online brothel -- a hotbed of illicit and exploitative activity -- Carl Ferrer, Michael Lacey, and James Larkin preyed on vulnerable victims, including children, and profited from their exploitation.

President Obama recently signed the Consumer Review Fairness Act of 2016 ( H.R. 5111 ), which passed both houses of Congress unanimously. The bill addresses a dangerous trend: businesses inserting clauses into their form contracts that attempt to limit their customers' ability to criticize products and services online. We're pleased to see Congress taking a big step to protect free speech online and rein in abusive form contracts.

The CRFA tackles two different ways that businesses attempt to squash their customers' reviews. The first is rather straightforward: simply inserting clauses into their form contracts saying that customers can't post negative reviews online, or imposing a fine for them. For instance, the Union Street Guest House used such a contract and attempted to fine guests over their bad reviews.

The second tactic is a bit more roundabout: businesses put a clause in their contracts saying that they own the copyright to customers' reviews. Then, when they see a review that they don't like, they file a takedown notice under the Digital Millennium Copyright Act (DMCA). One notorious example of that trick is a form contract for doctors offered by a company called Medical Justice . The U.S. Department of Health and Human Services ordered doctors to quit using such contracts in 2013 , but similar practices live on across different industries. The CRFA voids both types of contract clauses and makes it illegal for businesses to offer them.

When we've written previously about the CRFA, we've noted a potential gap in the way the law was worded . Companies may try to argue that they are allowed to craft contract clauses assigning themselves the copyright to customers' reviews so long as the reviews are not "lawful." Companies may then attempt to remove web content written by customers using the special censorship tools available to copyright owners under the DMCA, claiming that that content is not lawful (for example, because it allegedly defames the company). If courts--or service providers who receive takedown notices--accept that reasoning, then vendors could bypass the traditional protections for allegedly illegal speech, having content removed immediately under the DMCA rather than going through a court as it normally would for non-copyright speech claims. We are disappointed that Congress failed to clearly foreclose this abuse of form contracts and the DMCA takedown process.

Ultimately, though, anti-review contracts were already on very shaky legal ground before the CRFA passed, as were form contracts that included surprising transfers of copyright ownership . Courts have reliably sided with the customer's freedom to write negative reviews. We will be watching closely to see if any unscrupulous companies attempt to take advantage of the ambiguous wording in the law. If that happens, the courts should shut it down.

Despite this oversight, we're glad to see Congress standing up to the use of abusive form contracts to stifle freedom of expression. It's telling that the bill passed both chambers unanimously: in a session that's been marked by gridlock, this has been one area where lawmakers in both parties agree. We hope to see lawmakers build on this progress and protect customers in the next session of Congress via bills like the SPEAK FREE Act and the Justice for Telecommunications Consumers Act .

A bill filed this month by state Representative Bill Chumley would require sellers to install a digital censorship hijack on computers and other devices that access the internet to prevent the viewing of what the lawmaker considers obscene content.

The proposal also would prohibit access to any online resource that supports sex work and would require manufacturers or sellers to block any websites that supposedly facilitate trafficking.

Both sellers and buyers could get around the limitation, for a ransom fee. The bill would fine manufacturers that sell a device without the blocking system, but they could opt out by paying $20 per device sold. Buyers could also verify their age and pay $20 to remove the censorship software.

Money collected would go toward the Attorney General's Office's pet project  of a human trafficking task force.

Chumley's bill has been referred to the House Judiciary Committee. Legislators return to Columbia for a new session next month.

On the occasion o f Human Rights day, t he National Coalition Against Censorship (NCAC) announced the launch of CENSORPEDIA, a crowdsourced Wiki, cataloging over 1,200 individual censorship incidents throughout history.

Censorpedia is a tool enabling researchers, journalists, academics, students and anyone interested in free speech t o explore the current landscape of censorship in the world and delve into censorship's history.

The database ' s crowdsourced model allows anyone with relevant source materials to add a case: past, present, ongoing or resolved.

Visitors can browse or search these cases by the region in which they occurred, the grounds for censorship and the medium of expression.

The 1,200 incidents currently cataloged on Censorpedia are the product of over 20 years of contributions from NCAC staff, volunteers, artists and students to Antoni Muntadas landmark 1994 art project, The File Room.

See Censorpedia at wiki.ncac.org

A new US has been signed into effect that bars businesses from punishing customers for giving bad reviews.

The Consumer Review Fairness Act ( HR 5111 ) voids any contract that involves prohibitions or penalties related to poor online reviews.

The aim of the bill, written by Reps. Leonard Lance (R-NJ) and Joseph Kennedy (D-MA) is to stop companies from imposing penalties on consumers who would leave negative comments on sites such as Yelp. Lance explained:

Consumers in the 21st century economy should be able to post, comment and tweet their honest and accurate feedback without fear of retribution. Too many companies are burying non-disparagement clauses in fine print and going after consumers when they post negative feedback online.

With the new law in effect, any contract that attempts to tie in a clause calling for a fine or penalty for a review would be rendered void and legally unenforceable. The law would also prevent a business from asserting intellectual property claims on the content of a review, provided no trade secrets or personally identifiable information are involved.  However  the bill does make exceptions in the case of reviews deemed to be libelous or slanderous, and also removes any protections for reviews and posts that are found to be false or misleading.

Friday the 13th: The Game appears to be heading for the same censorship troubles as the movies series.

Co-creator of the game, Wes Keltner tweeted today that they met with the games raters of the ESRB and Friday the 13th: The Game is between an M (mature) and an AO (adults only).

When talking with GameRevolution, Keltner said he couldn't comment on the ESRB's exact reasons going into the game's potential ratings, but many are speculating it has to do with the game's reported inclusion of nudity. Of course, what's an entry in the Friday the 13th series without at least a naked shower scene.

Keltner told GameRevolution that there is no way they would consider releasing the game with an AO rating, as it would prevent them from releasing on consoles. Many stores also don't carry AO-rated games so it would severely impact their sales.

So just like a large number of the movies series, the game makers will just have to put up with censor cuts.

The defunct US news website Gawker has settled a lawsuit won by retired US professional wrestler Hulk Hogan for $31m (£25m).

The privacy case forced Gawker to declare bankruptcy earlier this year, after a jury awarded Hogan $140m over a leaked sex tape. Gawker shut down in August following the judgement.

The website, launched in the early 2000s, was known for its acerbic tone and aggressive coverage of celebrities.

Hogan's legal bill was paid by tech billionaire Peter Thiel, who had earlier fallen victim to a Gawker gay expose, said he wanted to curb Gawker's bullying .

Campaign group Reporters without Borders, however, criticised Thiel's secret involvement in the case, calling it a serious threat to press freedom.

Gawker founder Nick Denton said in a blog that the company and staff were confident the appeals process would reduce the judgement against Gawker, but that all-out legal war would have cost too much, and hurt too many people, and there was no end in sight. Denton also said that as part of the settlement, three true stories would be removed from the web .

In a bombshell published today, Reuters is reporting that, in 2015, Yahoo complied with an order it received from the U.S. government to search all of its users' incoming emails, in real time.

There's still much that we don't know at this point, but if the report is accurate, it represents a new--and dangerous--expansion of the government's mass surveillance techniques.

This isn't the first time the U.S. government has been caught conducting unconstitutional mass surveillance of Internet communications in real time. The NSA's Upstream surveillance program--the program at the heart of our ongoing lawsuit Jewel v. NSA --bears some resemblance to the surveillance technique described in the Reuters report. In both cases, the government compels providers to scan the contents of communications as they pass through the providers' networks, searching the full contents of the communications for targeted "selectors," such as email addresses, phone numbers, or malware " cybersignatures ."

Mass surveillance of Yahoo's emails is unconstitutional for the same reasons that it'sunconstitutional for the government to copy and search through vast amounts of communications passing through AT&T's network as part of Upstream. The sweeping warrantless surveillance of millions of Yahoo users' communications described in the Reuters story flies in the face of the Fourth Amendment's prohibition against unreasonable searches. Surveillance like this is an example of " general warrants " that the Fourth Amendment was directly intended to prevent. (Note that, as we've explained before , it is irrelevant that Yahoo itself conducted the searches since it was acting as an agent of the government.)

While illegal mass surveillance is sadly familiar, the Yahoo surveillance program represents some deeply troubling new twists.

First, this is the first public indication that the government has compelled a U.S.-based email provider--as opposed to an Internet-backbone provider--to conduct surveillance against all its customers in real time. In attempting to justify its warrantless surveillance under Section 702 of the FISA Amendments Act--including Upstream and PRISM--the government has claimed that these programs only "target" foreigners outside the U.S. and thus do not implicate American citizens' constitutional rights. Here, however, the government seems to have dispensed with that dubious facade by intentionally engaging in mass surveillance of purely domestic communications involving millions of Yahoo users.

Second, the story explains that Yahoo had to build new capabilities to comply with the government's demands, and that new code may have, itself, opened up new security vulnerabilities for Yahoo and its users. We read about new data breaches and attempts to compromise the security of Internet-connected systems on a seemingly daily basis. Yet this story is another example of how the government continues to take actions that have serious potential for collateral effects on everyday users.

We hope this story sparks further questions. For starters: is Yahoo the only company to be compelled to engage in this sort of mass surveillance? What legal authority does the government think can possibly justify such an invasion of privacy? The government needs to give us those answers.