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In Texas, large social media platforms may soon lose the right to moderate their own content.

It does make exceptions for harassment, for violence, censorship that is permitted under federal law Section 230 which is its own thing," law professor Alan Rozenshtein says.

"But even reading those broadly ... Do we want to have platforms in which Neo-Nazis are always permitted, by law, to say their stuff?

Today, On Point: NetChoice v. Paxton and how a Texas law could impact First Amendment rights and content moderation online.

Alan Rozenshtein, associate professor of law at the University of Minnesota Law School. Senior editor at Lawfare. Co-host of the Rational Security podcast. (@ARozenshtein)

Julie Owono, executive director at Internet Sans Frontires (Internet Without Borders) and the Content Policy and Society Lab at Stanford. Inaugural member of the Facebook Oversight Board. Affiliate at the Berkman Klein Center for Internet and Society at Harvard. (@JulieOwono)

Give us an overview of HB 20. What does this law in Texas actually do?

Alan Rozenshtein: "What the law purports to do, and that may be different than what the law actually does, but what the law purports to do is to limit the ability of the biggest social media platforms from, we can call it censoring, we could call it moderating. There's kind of no value neutral description, from removing content posted by users based on, quote-unquote, their viewpoint.

"That's the core of what the law does. In addition, the law imposes some transparency requirements on platforms so that they publicly disclose how they're moderating. It requires platforms to set up processes for users to appeal content removals. Those are a little less controversial. But the core and what's gotten the most attention, and rightfully so, is this restriction on the moderation based on quote-unquote viewpoint."

I want to talk about the practicality of this. This is not the usual purview of a state law to try to regulate just within a state how these worldwide platforms work.

Alan Rozenshtein: "That's right. And it's not clear how you could have a patchwork system of state regulations on these big platforms, which are not just national, but global. If Texas has its requirements, and Florida, which passed a similar law, has its requirements, but then California or Massachusetts has opposite requirements, there's no obvious way for platforms to run different moderation systems for different users without potentially breaking up the platforms into state-based versions, or possibly even having the platforms just withdraw from some jurisdictions.

"If this law fully goes into effect, it's a possibility that the platforms decide that, Well, we just can't operate in Texas. And so they have to block Texas users. This is one reason why some legal observers, myself included, think that behind this law is lurking some real constitutional issues, beyond just potential First Amendment problems. And that has to do with the ability of states to regulate companies that do business across state lines, because of the potential disruptive effects that could have on the national economy."

Who enforces this law? How would it work?

Alan Rozenshtein: "The statute provides that either a user who believes that they or their content has been removed unlawfully, or the attorney general of Texas could bring a lawsuit against the companies. There's no provision for damages. So you can't sue for money, though you can sue for attorney's fees. But the real main remedy is that a user, or the state of Texas, can ask a court to require the companies to reinstate a user or reinstate content."

Is there evidence of an anti-conservative bias on the part of these companies?

Alan Rozenshtein: "With respect to the kind of question of, Is there conservative anti-conservative bias? It's very hard to know. There's no question that plenty of conservatives are censored, if you want to put it that way, on the big tech companies. But plenty of liberals are censored as well, and plenty of conservatives have done awfully well on social media. In fact, a large reason why we've seen, you know, the growth of a lot of kind of conservative media is because of their ability to leverage social media.

"And of course, social media has incentives not to censor the views that millions of Americans find interesting. At the end of the day, these are for-profit companies that run on user engagement, as they say, and advertisement. So it's just not even in their interest to systematically censor one side of the political spectrum or another.

"Now, there have, again, been some high profile incidents. And I do think Twitter and Facebook taking Trump off their platforms in the wake of the January 6th attack on the Capitol, was quite controversial, frankly, among all sorts of folks, not just conservatives. And in addition, I think there is a perception, and I think this is true, that at least culturally, the companies themselves, their employees, they are certainly to the left of the median American, certainly to the left of the median Texan. Again, though, I'm not sure that translates into systematic censorship of conservatives.

"But I do think you can probably say ... that the technology companies are trying to build platforms that appeal to a wide swath of Americans. And therefore, they are probably erring on the side of censoring when you get to the extreme of public opinion. And here I do think that to the extent that conservatives have polarized in the last decade, more so than liberals, political scientists call this asymmetric polarization. Perhaps maybe there's more censorship of conservative views.

"But again, just to emphasize, the empirical premise of a lot of these laws, that there's some anti-conservative censorship on a broad scale, relative to anti liberal censorship, that very much remains to be proven."

Is there a case to be made that better regulation is needed, particularly for these big tech companies?

Alan Rozenshtein: "I certainly think so. I am not someone who reflexively opposes government efforts to regulate, put some guardrails around what these large tech companies can do. Because the state of Texas is right when it says that these companies control the digital public square, that these are some of the most important forums for communication in modern society.

"And I think that it is, at the very least, questionable to leave these monumentally important decisions to large private companies that operate according to the imperatives of the free market. Now, I'm not saying that there should be total regulation. The devil is in the details, as it is with so many issues of tech policy and law. So I certainly think there's some room. I don't think the Texas law does a very good job, though."

Who should be making these rules? Should we leave it to the companies themselves?

Alan Rozenshtein: "If the companies can come up with good rules, I think that's fine. Often the way to get companies to do something is to threaten regulation. If at the end of the day, the regulation, quote-unquote, comes from the companies themselves, rather than the law, kind of who cares?

"But at the very least, I think the relevant party here should be Congress, not the states. Again, because you cannot have a patchwork of state laws. I don't support state laws trying to limit what companies can moderate. I also don't support state laws on the other side trying to force companies to remove electoral misinformation or vaccine information. I just think this is not an issue for states to do."

Lawfare: "The Fifth Circuits Social Media Decision: A Dangerous Example of First Amendment Absolutism" "On Sept. 16, the Fifth Circuit issued its opinion in NetChoice v. Paxton, upholding the controversial Texas law that limits the ability of large social media platforms to moderate content and also imposes disclosure and appeal requirements on them."

Read the original here:
How a Texas law could impact First Amendment rights and content moderation online - WBUR News

In May, Nicholas Weaver suggested in Lawfare that the U.S. Treasury should creatively sanction Tornado Cash. In August, the Office of Foreign Assets Control (OFAC) followed Weavers advice. The results were pretty disastrous for civil liberties, beginning with OFACs listing of 21 instances of autonomous code published to a blockchain as sanctioned entities with little clarity on the intent or scope of that action. This first-ever OFAC sanctioning of autonomous code controlled by no legal person ran headlong into the established precedent that code is speech and protected by the First Amendment.

Additionally, several contributors to the open source code behind Tornado Cash were suspended from GitHub. These suspensions stoked fears among contributors to privacy-preserving code that if a bad actor uses a tool built with their code, the U.S. government will not only shut down the toolit will also punish contributors who generally have no say in how their open source contributions are used. The implications of [the Treasury Department] adding the Tornado Cash protocol to the sanction list was actually greater for the world beyond crypto than for crypto itself, Omid Malekan, an adjunct professor at Columbia Business School told Grid.

Similar fears around the right to privacy online were echoed by both industry and digital rights groups. Coin Centers Jerry Brito perhaps summed up these concerns best when speaking to The Block: If your right as an American to privacy is only if North Koreans never use that tool, then you dont have a right to privacy.

Now, OFAC has tried to clarify the effect of its sanctions on free speech. But digital human rights advocates are justified in maintaining their concerns over the suit-worthy chilling effects OFACs sanctions are having on free speech rights and the creation of privacy-preserving technologies.

Weavers piece did provide a thorough explanation of how Tornado.cash works, using the popular cryptocurrency Ethereum as an example. At the highest level, as he said: Tornado Cash operates by having a series of pools of Ethereum or other cryptocurrencies controlled by a smart contract, a program deployed on the underlying blockchain that allows someone to withdraw from the shared pool without linking it to their particular deposit.

A less technical analogy of how the virtual currency anonymizer is run could be that Tornado.cash creates a private room full of safety deposit boxes. A person can enter the private room and leave an amount of Ethereum in exchange for a unique receipt. Anyone can then take that unique receipt back into the private room and withdraw from the corresponding safety deposit box. No one would know which box was used by either the depositor or the withdrawer, or even if they are the same person. Once a transaction is completed, the withdrawer can choose to publicly disclose the receipt and prove where the Ethereum came from. But they dont have to, and this breaking of the chain of Ethereums public ledger is how Tornado Cash can improve privacy.

Notably, this all happens through autonomous code integrated into the Ethereum blockchain. No one owns or controls that code, and thus no creator takes a portion of proceeds from its function. Yet that code itself has been sanctioned. In the United States, writing code is protected under the First Amendment as a form of speech. Civil liberties organizations have repeatedly fought, and won, to enshrine the right to code as protected speech. Should OFACs sanctions not be further clarified, this right will take a huge hit because, again, OFAC did not sanction only individuals and entities at Tornado Cash, but Tornado Cashs open source protocolor, in other words, the code itself.

This has already led to a major chilling effect on that code and those who wrote it. The open source code used to run Tornado Cash was taken down from GitHub, the programmer responsible for the code was arrested in the Netherlands, and the Electronic Frontier Foundation is now suing on behalf of Matthew Green, a computer science professor at the Johns Hopkins Information Security Institute. Throughout the open source software community, many are protesting this apparent banning of code as speech, with one person even turning it into a song. Of these things, the only one that OFACs clarifications have spoken to is that the right to sing Tornado Cashs code remains uninfringed.

To be clear: State-sanctioned criminal enterprises, as well as those that support them, are deplorable and should be stoppedbut not in a way that compromises human rights and the First Amendment. In sanctioning the open source protocol Tornado.cash, OFAC has arguably overstepped its authority in addition to chilling speech. OFAC has the authority to sanction persons or property. But Tornado.cash is neither. It is code. This is a rough equivalent to sanctioning the email protocol in the early days of the internet, with the justification that email is often used to facilitate phishing attacks.

OFAC has not yet clarified what Tornado.cash has specifically done wrong, or what other projects need to do differently to avoid being the target of sanctions. Every open source and decentralized project runs the risk of becoming tainted by bad actors. This often happens when a developer gives up control of their code. This chilling effect could reverberate throughout the internetthat if a developer creates privacy-preserving code, the U.S. government could come after them. Without further clarification from OFAC, fewer privacy-forward projects might be built in the United States in the future, which would likely be a huge detriment to the human right to privacy online.

OFACs sanctions can also easily be interpreted as a warning shot at projects attempting to build anonymous digital assets. With ever-increasing concerns about harmful and exploitative surveillance of every aspect of Americans digital lives and few laws to protect Americans privacy online, the need for privacy-preserving technology only grows more urgent. Software projects should not be labeled as criminal for trying to replicate the same degree of anonymity and privacy in the digital space that cash-based systems of commerce have offered for thousands of years. Cash is a public goodand some amount of cash will always be used in crime. Yet there are no noteworthy calls for a ban on cash.

There are many legitimate reasons to seek anonymity in financial transactions. Privacy tools are important to, for example, activists in authoritarian states where revealing financial information could result in jail time or execution. Anonymity, particularly financial, may soon become essential for pregnant people seeking abortions in the United States, as well as for supporters in states that criminalize donations to abortion funds or Planned Parenthood. Simply not wanting personal financial history surveilled by governments, corporations, stalkers, or other bad actors is a legitimate reason to seek privacy-preserving technologies online.

OFAC is on firm ground when it sanctions people or property, including cryptocurrency, involved in criminal enterprises like the North Korean Lazarus Group. But OFAC went too far in sanctioning code, and there has been tremendous fallout in terms of speech and privacy. OFAC still needs to clarify what, exactly, it was trying to do and in doing so walk back this apparent sanctioning of code. Writing code is a basic human right, and so is privacy.

Read more from the original source:
Tornado Cash Sanctions Are Unduly 'Creative' With the First Amendment - Lawfare

Censorship, and advocating for it, is anti-American. Banning and controlling information is the work of an authoritarian government, not a democratic one. It is also a violation of the First Amendment of the United States Constitution.

Even still, individuals and entities make attempts to ban certain works of literature for a myriad of reasons. According to the American Library Association (ALA), the top three reasons written works are challenged are because there is sexually explicit content, content that is unsuited for any age group and/or content with offensive language.

Pen America, an organization that advocates for free speech, reported that from July 1, 2021, to June 30, 2022, schools banned 2,532 books. These bans occurred in 32 states and affected 4 million students.

2022 is set up to be a record year of book challenges; from Jan. 1 Aug. 1 alone, there have been 681 challenges on 1,651 unique titles. 41% of these books have LGBTQ themes and protagonists, 40% include protagonist or secondary characters of color, 22% contain various sexual content and 21% address race or racism.

Everywhere Babies is a picture book for children aged 1-3 containing illustrations of babies crawling, sleeping and being cradled by family members was placed on the Florida Citizens Alliance Porn in Schools Report because there is an illustration of a same-sex couple, which is absolutely asinine. If you are viewing a book about babies as having pornographic material, reevaluate yourself and your perspective. Same-sex couples taking care of a child is not pornography; this is a book intended for babies enrichment and learning.

Over half of the books challenged are intended for young adults or children. It is not children that are challenging books for their content, but adults who are fearful that their children may be exposed to certain themes or content, such as gender identity, mental illness, sexuality and racism. But this bubble they are fabricating is only to comfort themselves. Racial injustice will not end because a child doesnt read about it; queer people will still exist; mental illness will still be prevalent. Reading about these topics and seeing your identity and experiences in an empowered character is affirming and validating.

Books represent the most core experiences of a society and reflect the worlds most common occurrences. They are time capsules of their periods. You cannot coddle your children into ignorance and shield them from the realities of life.

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Attacking the First Amendment: The growing censorship movement - Chargerbulletin

An Ohio man is suing his local police department after he was arrested and jailed for poking fun at them on Facebook, asking the Supreme Court to rule that his First Amendment rights trump qualified immunity for law enforcement.

In 2016, Anthony Novak created a Facebook parody page of the Parma, Ohio, Police Department. The page looked nearly identical to the police departments real Facebook page, but it did not have the verified blue check mark.

In a series of about a half dozen posts, Mr. Novak suggested the department was racist and lacked compassion. He took the account down after it was online for only about 12 hours because the police threatened an investigation during a news interview. The department said people were confusing the posts with real law enforcement information.

Nearly a month after Novak had deleted the parody account, police arrested him, searched his apartment, seized his phone and laptop, and jailed him for four days, read his court papers, which were filed this week at the high court.

He was charged with violating an Ohio law making it a felony to interrupt or disrupt law enforcement using a computer. Mr. Novak, though, was found not guilty by a jury.

After being cleared of criminal wrongdoing at his trial, Mr. Novak sued the city claiming its police department upended his First and Fourth Amendment rights.

But the lower courts ruled the officers were protected by qualified immunity, a doctrine that protects government workers from facing civil liability when acting in the course of their duties.

I sued to hold the police accountable for violating my rights, but also to make sure this doesnt happen to anyone else, Mr. Novak said. My Facebook page was obviously a joke, but the criticism was serious. I hope the Supreme Court will take my case and put other police forces on notice by making it clear that what happened to me was wrong.

The city of Parma has until Oct. 28 to respond to Mr. Novaks appeal to the Supreme Court, according to the docket.

It takes four justices to vote in favor of granting review in a case for oral arguments to be scheduled.

Mr. Novaks attorneys are also representing a Louisiana man suing his local police sheriff after he was charged for violating an anti-terrorism law when he posted a joke online in 2020 comparing the COVID-19 pandemic to a zombie outbreak. Similarly, a lower court granted that officer qualified immunity.

If the police can use their authority to arrest their critics, everyones rights are at risk, said Caroline Grace Brothers, an attorney with the Institute for Justice, which is representing both Mr. Novak and the Louisiana man. Criticizing or making fun of the police on the internet is no different than doing so in books, pamphlets or the public square. Getting arrested for a humorous Facebook post is no joke.

The attorneys want the high court to review the doctrine of qualified immunity altogether, limiting its scope.

A spokesperson for the city of Parma did not immediately respond to a request for comment about Mr. Novaks appeal.

In a court filing this summer with the high court, the city argued the lower court was correct in granting the officers qualified immunity against Mr. Novaks lawsuit.

This Court has repeatedly affirmed that the doctrine of qualified immunity shields officers from civil liability so long as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known, wrote the attorneys for the city.

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Ohio man who was jailed for making fun of police online takes First Amendment case to Supreme Court - Washington Times

Is the Department of Homeland Security (DHS) still filing intelligence reports about journalists?

It seems like a simple question. And I confess I wasnt expecting the routine status report a federal judge ordered the government to file on Wednesday to raise my eyebrowsmuch less to warrant an article. But asked to address this apparently easy question, the Justice Department saidin essencethat its not sure and will get back to the judge in a few weeks. Defendant needs additional time to appropriately address the question. ... Defendants response could potentially have a wide implication beyond this particular case.

I dont have any idea what it means either.

This strange filing is actually the second of two bizarre positions the government has taken in my lawsuit over DHSs filing of two open source intelligence reports (OSIRs) about me in 2020. I wont rehash the story of the two reports, about which I have written in detail elsewhere. To understand the first weird position, and how it led to this second one, the only relevant facts are these.

The two intelligence reports (here is the first and here is the second) were leaked to Shane Harris of the Washington Post, along with a third about New York Times reporter Mike Baker. Following their disclosure, DHS issued a statement assuring the public that the practice had been stopped: Upon learning about the practice, Acting Secretary [Chad] Wolf directed the DHS Intelligence & Analysis Directorate to immediately discontinue collecting information involving members of the press. In no way does the Acting Secretary condone this practice and he has immediately ordered an inquiry into the matter.

I filed a Freedom of Information Act request to reveal the paper trail on the reports about Baker and me, as well as any other journalists who might have had such reports filed about them. I also sought similar open source reporting for any other people based on their First Amendment-protected activity, information about the use of such open source reports, information about any investigations of the practice after it was revealed, and information concerning policies and procedures about such reporting. In March of last year, I sued, having received no documents in response to my request.

Production of material under the suit has been slow, and its fair to say that the litigation has not yet shed significant light on how DHS came to be filing these reports on journalists, what the scope of the activity was with respect to other peoples First Amendment rights, or how the agency ultimately evaluated the propriety and legality of this sort of reporting. I remain hopeful that it will do so in good time, though under the current production schedule, it will be a while.

One thing the department has disclosed, however, is the specific reports about mebut with an important catch. The documents are highly redacted. Assuming these are the same documents that were leaked to me in full, it appears that my name cannot be releasedto me. It further appears it cannot be disclosed that my Twitter feed is the subject of the reports. Ditto the substance of my tweets, which is available to all of my more than 400,000 Twitter followers and anyone else who wants to see them.

Remarkably, the government takes the position that these redactions of publicly available unclassified information are justified on the basis of protecting intelligence sources and methods. As the government explains its position to the court:

[T]he Department will provide a declaration explaining that the redacted information within the OSIRs included the sources and methods used by I & A and that the disclosure of these documents in full would reveal intelligence sources and methods utilized by I & A.

Specifically, the records would reveal: (1) the underlying sources of information and intelligence methods that I & A relies upon to engage in information collection that forms its analytical assessments and operations; (2) information that, taken together, may reveal these methods even if it does not do so individually; and (3) information which would reveal the method in which I & A shares information with other entities. Further, to avoid irreparable harm, I & A must protect not only specific sources, but also information that would allow a reader to discern a source or type of source, information revealing intelligence or analytic methods, and information that would assist targets in evading lawful intelligence activities. The obligation to protect sources and methods is direction from Congress that may not be waived by the Department, regardless of whether the source or method is sensitive or public, and regardless of whether a plaintiff has concrete or hypothetical knowledge of the source or method being referred to.

Suffice it to say that I and my lawyers take a rather different view of the matter, and sooner or later, the court is going to have to decide whos right.

This brings us to last weeks status hearing, where the immediate issue before U.S. District Judge Randolph Moss was whether to decide this sooner or later. My lawyers (Jacob Tracer and Andrew Elliott of Jenner & Block) had asked Judge Moss to resolve the question now of whether protecting sources and methods could possibly justify these redactions, on the theory that the answer to this question could affect the rest of the governments production. If we are right and the governments position is ridiculous, we argued, it would save everyone time to know that now. The government, by contrast, asked Judge Moss to wait until all the production is done.

Judge Moss indicated, as a general matter, that he prefers to resolve disputes over production at the end, not individually along the way. But there is one thing that might change his thinking on this score, he noted, and that was if he was not confident that the underlying activitythe filing of intelligence reports about journalistshad actually ceased. It was in that context that he asked government counsel to address this question directly. To make sure she had a chance to consult with the client agency, he asked her to file a brief on the matter, rather than demanding an answer in court.

This is the background to the governments filing Wednesday, and to be frank, I was not expecting the Justice Department to be in the odd position of being unable to answer the judges question. Government counsel set her own deadline for this filing, in response to a question from the judge. She asked him for a week in which to file the brief, and he granted her that timeat the end of which she was still not able to give him a simple no in response to his question of whether DHS is still filing intelligence reports about journalists. Thats a little unnerving.

Here is the relevant portion of her status report:

On September 21, 2022, the parties appeared for a pre-motion conference and the Court ordered, inter alia, Defendant to file a status report addressing whether ... Defendant discontinued the practice of collecting information involving members of the press. ...

In terms of the first question, Defendant needs additional time to appropriately address the question, as expressed during the September 21, 2022, pre-motion conference. Defendants response could potentially have a wide implication beyond this particular case. Consequently, Defendant requests additional time, to and through October 21, 2022, to provide a response.

I may have to wait until Oct. 21 for clarity on this matter, which I agree has a wide implication beyond this particular case.

In the meantime, however, I would like to stress two things: First, I am not an intelligence source; and second, reading my Twitter feed is not a sensitive intelligence-gathering method. Much as it would flatter my ego if seeing my daily Good Morning image and #BeastOfTheDay tweets counted as an intelligence method, it doesnt. Its great if government agencies and their personnel want to read my work. But the inability to distinguish between reading a journalists social media account and a sensitive intelligence-gathering method is dangerousboth for the intelligence community that cant see the difference and for the journalists who have to operate in an environment conditioned by that inability.

Here is the original post:
I Am Not a Source; Reading My Twitter Feed Is Not a Method - Lawfare