Landmark moment

Yesterday both Houses of  the UK Parliament agreed the designation of the BBFC as the age verification regulator for commercial pornography online. The end of a long road. Beginning of a new journey.

Posted in E-commerce, Regulation, Self-regulation

Refreshing honesty – damnable ambition

Yesterday I blogged about s.230 of the Communications Decency Act, 1996 and how a group of academics and civil society organizations were trying to persuade the US government to insist upon Canada and Mexico agreeing to adopt a version of it in the negotiations currently taking place around the North American Free Trade Agreement.

Later that day someone sent me a link to a blog published by one of the signatories, the Electronic Frontier Foundation (EFF).

It ill-behoves a Brit to lecture anyone on the ugliness of imperial ambition,  and the EFF at least had the good grace to confess being a little uneasy about their tactics. However, as with zealots down the ages, the ends can easily be made to justify the means.

Take those troublesome Canadians, for example.  Here is what the EFF say

The difficulty with the inclusion of Section 230 style safe harbors in NAFTA is that it would either require Canada and Mexico to change their law, or it would require the provision to be watered down in order to become compatible with their existing law—which would make its inclusion pointless. Therefore, the first option is the better one. (emphasis added).  For Canada, in particular, strengthening legal protection for Internet platforms could help roll back the precedent set in the Google v. Equustek case, in which the Canadian Supreme Court required Google to globally de-index a website that purportedly infringed Canadian trade secret rights.

So we’re clear about that?  For the EFF it’s the American way or it’s the highway. The quaint habits and jurisprudence of other democracies are to be tolerated only insofar as they are identical to ours. No room for doubt or deviation. Local context? Piffle. The whole world is seeking to modify the excesses which have been facilitated by s.230. The whole world is wrong and if they want to sell us washing machines……

I wish I could be as certain about anything as the EFF seem to be about everything.

Posted in Default settings, E-commerce, Internet governance, Regulation, Self-regulation

More loyal and royal than the Crown

s. 230 of the Communications Decency Act, 1996 is the bit of US Federal law that confers a near-blanket immunity on internet intermediaries who facilitate the publication of content by third parties.

You would think, in January 2018, anyone who chose to write about s.230 could not fail to mention its widely acknowledged shortcomings. Given, for example, the intense debates that have taken place on and around Capitol Hill about the part s.230 has played in facilitating child sex abuse, child sex trafficking and the distribution of child sex abuse images you might imagine it would be hard not to refer to that dimension, even if only in passing, even if only to explain why you take a different view from the still growing number of people advocating reform.

Equally, as people around the world gather at the funeral pyre of fact-checked based journalism, at a time when everywhere there is a huge amount of angst about fake news, hate speech, copyright theft, about foreign interference in,  or other forms of manipulation of, democratic processes – I could go on, and on, but I am sure you get the point – likely you may have hoped that a  discussion of a possible link between these phenomena and s.230 will at least flicker across your screen or appear on the page.

In which case prepare to be hugely disappointed by the lobbying letter published on 21st of this month by 39 academics and 16 organizations. I’ll call them the “Gang of 55” or maybe just the “Gang” for short.

The letter is addressed to representatives of the US, Canadian and Mexican governments, the people leading the negotiations on a possible new North American Free Trade Agreement (NAFTA). Casting aside forms of persuasion which generally are the hallmark of academic life,  the Gang want the Trump Administration to insist that a lookalike version of s.230 be included in the deal and they want the Canadians and Mexicans to suck it up as the price of doing business with Uncle Sam.

Blinded by the light

For the Gang, it is evident the past 21 years might as well never have happened. The internet is simply one continuous, uninterrupted and unqualified success story and it’s all pretty much down to s.230. The cyber Summer of Love is still here. The Gang inhaled.  Virtual kaftans are showing. Trapped by nostalgia or an attachment to a once glorious idea? Who knows? It can be hard to move on. Tell me about it. I was once a VP of MySpace.

Now the addressees of the letter are not idiots. They will be perfectly well aware of s.230’s faults so I can only imagine part of the point of the epistle is to rally others behind the pro- s.230 banner or help sustain waverers. In that, I think it will fail because the letter is so transparently inadequate. It is a rare example of silence amounting to misrepresentation.

While Facebook, Google et al seem almost daily to acknowledge that not everything has worked out brilliantly the Gang speak only of their success. A case of the colonies being more loyal and royal than the Crown?

The Gang tell us

intermediary immunity lowers the barriers to launch new online services


This helps prevent the market from ossifying at a small number of incumbent giants.

Perhaps that’s how the internet works on Planet Tharg but, er, the one I am familiar with right here on Earth is already dominated by a

small number of incumbent giants

giants, moreover, not slow to snap up any new business that arrives on the scene and looks likely to pose a threat. Think Waze, Instagram, WhatsApp, Periscope to name but four. The Gang look away from the hard-nosed, vulgar, commercial realities of near-monopoly power, the gigantic cash mountains such market dominance can generate and the power that comes with a practically bottomless pit of money.

Its time has passed

There may have been a case for s.230 back in 1996. Back then we did not know how this new-fangled technology was going to work out. Now we do. New entrants cannot come to market and plead ignorance. Being small and funky does not give you a licence or permission to misbehave.

The Gang say

Without immunity, new entrants face business-ending liability exposure from day one; and they must make expensive upfront investments to mitigate that risk. 

This is the very embodiment of the Zuckerbergesque doctrine of “move fast and break things”, a doctrine which he has now abandoned as he seeks to make amends for its manifest failings. No liability = zero incentive. A unique privilege. A form of subsidy enjoyed by no other type of business. Internet exceptionalism needs to be buried.

In its present form, the immunity has provided an alibi for inaction. It has become a refuge for scoundrels, an incitement to recklessness, a permanent “Get Out of Jail Free” card.

The immunity values innovation above all other things. The only arbiter is whether or not the market likes it and it makes money. What about consequences?

As Tom Lehrer put it in his ditty about Wernher Von Braun’s work

Once the rockets go up, who cares where they come down? That’s not my department.”

We must narrow the scope of the immunity

It would clearly be unfair and unreasonable to create any form of liability for content a service provider could not possibly have known about.  In my version of the internet, there would be a rebuttable presumption of immunity. It can be set aside if a business cannot show it has made good faith efforts to anticipate potential breaches of its Ts&Cs and taken reasonable and proportionate steps to address them. It wouldn’t have to get it right 100% of the time but, being mindful of available technology, it would have to show it tried.

Posted in Child abuse images, E-commerce, Internet governance, Privacy, Regulation, Self-regulation

A link between hate speech postings online and on-street violence?

Interesting piece in The Economist. Suggesting there is a correlation between hate speech postings on Facebook and violent crimes against refugees in Germany. Correlation. Not causation. But interesting nevertheless.

Posted in Regulation, Self-regulation

More and better compensation for victims of child sex abuse

Things are moving on in the USA. People are campaigning to get more and better compensation for victims of child sex abuse that results in images of the abuse being made and distributed over the internet. Well done James Marsh, the brilliant lawyer who will not let this go. We need a similar scheme in the UK. And everywhere else. If guys who engage in the vile trade are no longer worried about being arrested and spending time in goal they might worry if they thought it could cost them their pension and other assets as they are compelled to provide monetary compensation to the people they have hurt. #marshlawfirm

Posted in Child abuse images, Regulation, Self-regulation

Toy company fined for online data breach

Following disclosures in 2015 VTech – the toy company – has now been fined US$650,000  by the Federal Trade Commission for disgraceful and inexcusable lapses in security. That is not a huge sum for a company the size of VTech but I guess it is a shot across their virtual bows.

Here are some key extracts from the story.

“Not only was the website itself not secure, but the data were not encrypted in transit or at rest, contradicting security claims made in VTech’s privacy policy. This is not just poor practice, it’s a violation of COPPA, a rule meant to protect children’s privacy.”

“The number of parents and children affected is hard to estimate, but at the time nearly 5 million parent records and 227,000 child records were shown to be accessible. (to hackers) However, the FTC in the summary of its investigation notes:

…about 2.25 million parents had registered and created accounts….. for nearly 3 million children. This included about 638,000 Kid Connect accounts for children. In addition, about 134,000 parents in the United States created Planet VTech accounts for 130,000 children by November 2015…

And the Canadian Office of the Privacy Commissioner writes that “more than 500,000 Canadian children and their parents” were affected. “

Posted in Default settings, E-commerce, Regulation, Self-regulation

2018 – transparency will be the key

At last month’s Internet Governance Forum in Geneva, one of the acknowledged creators of the internet,  Vint Cerf,   was asked what he wished for in 2018.  His reply was telling

No further fragmentation of the internet.

Conforming with a single set of technical rules to allow computer to speak unto computer is one thing. As far as I know there is no immediate or obvious threat to that. What Cerf must have been referring to, therefore, are the politically and commercially determined policies which shape how people actually experience the internet wherever they happen to be on the planet.

If I am right about that Vint Cerf’s wish has already perished. On Monday Germany ‘s new laws on hate speech became operative.   In May next year the GDPR will kick in. There are countless examples of how different countries do things their own way in cyberspace.

The laws of nation- states increasingly will determine the sort of internet that is accessible to you and me. There is a sort of democratic symmetry about that which people will find easy to understand. I’m ok with that although I think it may be a while before it will be true for every country in the world. Size matters.

And in those countries where democratic symmetry or democratic anything is still a far-off dream? I can see that is an issue but it is simply absurd to argue that internet policy for the whole world is, in effect, determined by the fluctuating fortunes of the worst dictatorships.

So let’s start the New Year with a statement of the obvious. The honeymoon is well and truly over.

The wonder of the internet and its associated technologies remains as bright as ever but there is a much greater willingness on the part of many to look beyond the glitz.

“Many” here means consumer groups, civil rights and other civil society organizations, small technology firms and, above all, governments. Traditional media outlets have become not disinterested allies of all the above. That is quite an array of adversaries.

This scenario is particularly true in the developed nations, where there has been the longest, deepest and most pervasive exposure to the internet. Yet even in the global south, where the internet is still growing exponentially, there is much less willingness to buy into the marketing hype or the nerdy muteness which appears to accept anything and everything in the name of innovation. The flaws have become all too apparent.

Tony Blair famously said politicians

Campaign in poetry but govern in prose

That is true not just of politicians. It is also true of Silicon Valley and anyone selling anything. If the gap between the poetry and the prose becomes too large cynicism and distrust set in.

Either way, assuming it is not already too late, the only way forward for the internet industry in its broadest sense is going to involve substantial changes and the key to those changes will be transparency.

With their promises to expand the number of moderators Google and Facebook have certainly been showing they understand the position they are in but unless and until we see how they propose to deal with the transparency imperative it is too soon to say whether we have an acceptable, and therefore stable, way forward.

However, I will make one small prediction. Google, Facebook, Twitter and others will not be able, simply, to announce the terms on which they are willing to be transparent. There has to be a strong, properly resourced and credible, independent element. The history of Advisory Boards is not a good augury. Hopefully,  everybody has realised that.



Posted in Default settings, E-commerce, Facebook, Google, Internet governance, Privacy, Regulation, Self-regulation