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2023 Quick Links: Censorship

Age Authentication

* Axios: “Tech platforms struggle to verify their users’ age.” The article didn’t mention that mandatory online age authentication is also unconstitutional.

* Guardian: Australia will not force adult websites to bring in age verification due to privacy and security concerns

US

* California AB-1394: Commercial sexual exploitation: child sexual abuse material: civil actions:

(g) (1) A social media platform shall not knowingly facilitate, aid, or abet commercial sexual exploitation.
(2) For a violation of this subdivision, a court shall award statutory damages not exceeding four million dollars ($4,000,000) and not less than one million dollars ($1,000,000) for each act of commercial sexual exploitation facilitated, aided, or abetted by the social media platform.
(3) A social media platform shall not be deemed to be in violation of this subdivision if it demonstrates all of the following:
(A) The social media platform instituted and maintained a program of at least biannual audits of its designs, algorithms, practices, affordances, and features to detect designs, algorithms, practices, affordances, or features that have the potential to cause or contribute to violations of this subdivision.
(B) The social media platform took action, within 30 days of the completion of an audit described in subparagraph (A), designed to mitigate or eliminate the reasonably foreseeable risk that a design, algorithm, practice, affordance, or feature violates, or contributes to a violation of, this subdivision.
(C) The social media platform provided to each member of the social media platform’s board of directors a true and correct copy of each audit within 90 days of the audit being completed accompanied by a description of any action taken pursuant to subparagraph (B).
(4) Without in any way limiting the application of the term “knowingly” under paragraph (1), for purposes of this subdivision, a social media platform shall be deemed to have knowledge under paragraph (1) if all of the following are true:
(A) Material was reported to a social media platform using the mechanism required under subdivision (a) of Section 3273.66 for four consecutive months.
(B) The criteria set forth in paragraphs (1) to (3), inclusive, subdivision (a) of Section 3273.66 are established with respect to that reported material.
(C) The reported material was first displayed, stored, or hosted on the platform after January 1, 2025.
(5) As used in this subdivision, “facilitate, aid, or abet” means to deploy a system, design, feature, or affordance that is a substantial factor in causing minor users to be victims of commercial sexual exploitation.

TL;DR: to avoid ruinous liability, Internet services must deploy mandatory audits of their editorial procedures–the same kind of compelled censorial burden that was struck down as unconstitutional in the CA AADC. Worse, all of this is predicated on the untrue belief that social media services don’t have adequate existing legal and social motivations to remove CSAM when they learn about it.

* Boes v. State, 2023 WL 5242592 (Tex. Ct. App. Aug. 15, 2023): “the protective order resulted from an arrest for domestic violence. Although we do not find Appellant’s posts constitute “true threats,” because we have held tagging on Facebook constitutes a “communication,” Appellant violated the emergency protective order prohibiting communication “in any manner.””

* U.S. v. Mackey, 1:21-cr-00080-NGG  (E.D.N.Y. Jan. 23, 2023) (rejecting a First Amendment defense to a prosecution over text messages telling Hillary Clinton voters that they could vote by text).

* Twitter v. Garland, 2023 WL 2360932 (9th Cir. March 6, 2023). Restrictions on what Twitter can disclose in its transparency report about government national security letter and FISA requests survives strict scrutiny because [national security]. This highlights how transparency reports can mislead readers when they are not accurate and precise; which may be exacerbated by legal restrictions such as national security concerns.

* Techdirt: Twitter Admits in Court Filing: Elon Musk Is Simply Wrong About Government Interference At Twitter

* Mike Masnick,  The Unintended Consequences of Internet Regulation, April 2023.

* Wired: Inside America’s School Internet Censorship Machine

* NY Times: G.O.P. Targets Researchers Who Study Disinformation Ahead of 2024 Election

* Wired: An Anti-Porn App Put Him in Jail and His Family Under Surveillance

* NY Times: How Your Child’s Online Mistake Can Ruin Your Digital Life

* Some helpful articles debunking the argument that Internet services are or should be turned into common carriers:

– Ashutosh A. Bhagwat, Why Social Media Platforms Are Not Common Carriers, 2  J. Free Speech L. 127 (2022).  “common carrier regulation of social media platforms is not only unconstitutional, but also a terrible idea as a matter of public policy”

Christopher Yoo, What’s In a Name?: Common Carriage, Social Media, and the First Amendment

– Lawrence J. Spiwak, Regulatory Implications of Turning Internet Platforms into Common Carriers, 76 Fed. Comm. L.J. 1 (November, 2023).

International

* Wired: The Bizarre Reality of Getting Online in North Korea

* NY Times: How the Russian Government Silences Wartime Dissent

* Michael Geist, A Reality Check on the Online News Act: Why Bill C-18 Has Been a Total Policy Disaster

The post 2023 Quick Links: Censorship appeared first on Technology & Marketing Law Blog.

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