Category Archives: Transhuman News

from the who-does-this-help? dept

This post analyzes California AB 587, self-described as Content Moderation Requirements for Internet Terms of Service. I believe the bill will get a legislative hearing later this month.

A note about the draft Im analyzing,posted here. Its dated June 6, and its different from theversion publicly posted on the legislatures website(dated April 28). Im not sure what the June 6 drafts redlines compare tomaybe the bill as introduced? Im also not sure if the June 6 draft will be the basis of the hearing, or if there will be more iterations between now and then. Its exceptionally difficult for me to analyze bills that are changing rapidly in secret. When bill drafters secretly solicit feedback, every other constituency cannot follow along or share timely or helpful feedback. Its especially ironic to see non-public activity for a bill thats all aboutmandating transparency. _()_/

Whos Covered by the Bill?

The bill applies to social media platforms that: (A) Construct a public or semipublic profile within a bounded system created by the service. (B) Populate a list of other users with whom an individual shares a connection within the system. [and] (C) View and navigate a list of connections made by other individuals within the system.

This definition of social media has been around for about a decade, and its awful.Critiques I made8 years ago:

First, what is a semi-public profile, and how does it differ from a public or non-public profile? Is there even such a thing as a semi-private or non-public profile?

Second, what does a bounded system mean?The bounded system phrase sounds like a walled garden of some sort, but most walled gardens arent impervious. So what delimits the boundaries the statute refers to, and what does an unbounded system look like?

I also dont understand what constitutes a connection, what a list of connections means, or what it means to populate the connection list. This definition of social media was never meant to be used as a statutory definition, and every word invites litigation.

Further, the legislature shouldbut surely has notrun this definition through a test suite to make sure it fits the legislatures intent. In particular, which, if any, services offering user-generated content (UGC) functionality do NOT satisfy this definition? Though decades of litigation might ultimately answer the question, I expect that the language likely covers all UGC services.

[Note: based on a quick Lexis search, I saw similar statutory language in about 20 laws, but I did not see any caselaw interpreting the language because I believe those laws are largely unused.]

The bill then excludes some UGC services:

The Laws Requirements

Publish the TOS

The bill requires social media platforms to post their terms of service (TOS), translated into every language they offer product features in. It defines TOS as:

a policy or set of policies adopted by a social media company that specifies, at least, the user behavior and activities that are permitted on the internet-based service owned or operated by the social media company, and the user behavior and activities that may subject the user or an item of content to being actioned. This may include, but is not limited to, a terms of service document or agreement, rules or content moderation guidelines, community guidelines, acceptable uses, and other policies and established practices that outline these policies.

To start, I need to address the ambiguity of what constitutes the TOS because its the most dangerous and censorial trap of the bill. Every service publishes public-facing editorial rules, but the published versions never can capture ALL of the services editorial rules. Exceptions include: private interpretations that are not shared to protect against gaming, private interpretations that are too detailed for public consumption, private interpretations that governments ask/demand the services dont tell the public about, private interpretations that are made on the fly in response to exigencies, one-off exceptions, and more.

According to the bills definition, failing to publish all of these non-public policies and practices before taking action based on them could mean noncompliance with the bills requirements. Given the inevitability of such undisclosed editorial policies, it seems like every service always will be noncompliant.

Furthermore, to the extent the bill inhibits services from making an editorial decision using a policy/practice that hasnt been pre-announced, the bill would control and skew the services editorial decisions. This pre-announcement requirement would have the same effect as Floridas restrictions on updating their TOSes more than once every 30 days (the 11th Circuit heldthat restriction was unconstitutional).

Finally, imagine trying to impose a similar editorial policy disclosure requirement on a traditional publisher like a newspaper or book publisher. They currently arent required to disclose ANY editorial policies, let alone ALL of them, and I believe any such effort to require such disclosures would obviously be struck down as an unconstitutional intrusion into the freedom of speech and press.

In addition to requiring the TOSs publication, the bill says the TOS must include (1) a way to contact the platform to ask questions about the TOS, (2) descriptions of how users can complain about content and the social media companys commitments on response and resolution time. (Drafting suggestion for regulated services: We do not promise to respond ever), and (3) A list of potential actions the social media company may take against an item of content or a user, including, but not limited to, removal, demonetization, deprioritization, or banning. I identified 3 dozen potential actions in myContent Moderation Remedies article, and Im sure more exist or will be developed, so the remedies list should be long and Im not sure how a platform could pre-announce the full universe of possible remedies.

Information Disclosures to the CA AG

Once a quarter, the bill would require platforms to deliver to the CA AG the current TOS, a complete and detailed description of changes to the TOS in the prior quarter, and a statement of whether the TOS defines any of the following five terms and what the definitions are: Hate speech or racism, Extremism or radicalization, Disinformation or misinformation, Harassment, and Foreign political interference. [If the definitions are from the TOS, cant the AG just read that?]. Ill call the enumerated five content categories the Targeted Constitutionally Protected Content.

In addition, the platforms would need to provide a detailed description of content moderation practices used by the social media. This seems to contemplate more disclosures than just the TOS, but that definition seemingly already captured all of the services content moderation rules. I assume the bill wants to know how the services editorial policies are operationalized, but it doesnt make that clear. Plus, like Texas open-ended disclosure requirements, the unbounded disclosure obligation ensures litigation over (unavoidable) omissions.

Beyond the open-ended requirement, the bill enumerates an overwhelmingly complex list of required disclosures, which are far more invasive and burdensome than Texas plenty-burdensome demands:

All told, there are 7 categories of disclosures, and the bill indicates that the disclosure categories have, respectively, 5 options, at least 5 options, at least 3 options, at least 5 options, and at least 5 options. So I believe the bill requires that each services reports should include no less than 161 different categories of disclosures (75+75+73+75+75).

Who will benefit from these disclosures? At minimum, unlike the purported justification cited by the 11th Circuit for Floridas disclosure requirements, the bills required statistics cannot help consumers make better marketplace choices. By definition, each service can define each category of Targeted Constitutionally Protected Content differently, so consumers cannot compare the reported numbers across services. Furthermore, because services can change how these define each content category from time to time, it wont even be possible to compare a services new numbers against prior numbers to determine if they are getting better or worse at managing the Targeted Constitutionally Protected Content. Services could even change their definitions so they dont have to report anything. For example, a service could create an omnibus category of incivil content/activity that includes some or all of the Targeted Constitutionally Protected Content categories, in which case they wouldnt have to disclose anything. (Note also that this countermove would represent a change in the services editorial practices impelled by the bill, which exacerbates the constitutional problem discussed below). So who is the audience for the statistics and what, exactly, will they learn from the required disclosures? Without clear and persuasive answers to these questions, it looks like the state is demanding the info purely as a raw exercise of power, not to benefit any constituency.

Remedies

Violations can trigger penalties of up to $15k/violation/day, and the penalties should at minimum be sufficient to induce compliance with this act but should be mitigated if the service made a reasonable, good faith attempt to comply. The AG can enforce the law, but so can county counsel and city DAs in some circumstances. The bill provides those non-AG enforcers with some financial incentives to chase the penalty money as a bounty.

An earlier draft of the bill expressly authorized private rights of action via B&P 17200. Fortunately, that provision got struckbut, unfortunately, in its place theres a provision saying that this bill is cumulative with any other law. As a result, I think the 17200 PRA is still available. If so, this bill will be a perpetual litigation machine. I would expect every lawsuit against a regulated service would add 587 claims for alleged omissions, misrepresentations, etc. Like the CCPA/CPRA, the bill should clearly eliminate all PRAsunless the legislature wants Californians suing each other into oblivion.

Some Structural Problems with the Bill

Although the prior section identified some obvious drafting errors, fixing those errors wont make this a good bill. Some structural problems with the bill that cant be readily fixed.

The overall problem with mandatory editorial transparency. I just wrote awhole paper explaining why mandatory editorial transparency laws like AB 587 are categorically unconstitutional, so you should start with that if you havent already read it. To summarize, the disclosure requirements about editorial policies and practices functionally control speech by inducing publishers to make editorial decisions that will placate regulators rather than best serve the publishers audience. Furthermore, any investigation of the mandated disclosures puts the government in the position of supervising the editorial process, an unhealthy entanglement. I already mentioned one such example where regulators try to validate if the service properly described when it does manual vs. automated content moderation. Such an investigation would necessarily scrutinize and second-guess every aspect of the services editorial function.

Because of these inevitable speech restrictions, I believe strict scrutiny should apply to AB 587 without relying on the confused caselaw involving compelled commercial disclosures. In other words, I dont thinkZauderera recent darling of the pro-censorship crowdis the right test (I will have more to say on this topic). Further, Zauderer only applies when the disclosures are uncontroversial and purely factual, but the AB587 disclosures are neither. The Targeted Constitutionally Protect Content categories all involve highly political topics, not the pricing terms at issue in Zauderer; and the disclosures require substantial and highly debatable exercises of judgments to make the classifications, so they are not purely factual. And even if Zauderer does apply, I think the disclosure requirements impose an undue burden. For example, if 161 different prophylactic just-in-case disclosures dont constitute an undue burden, I dont know what would.

The TOS definition problem. As I mentioned, what constitutes part of the TOS creates a litigation trap easily exploited by plaintiffs. Furthermore, if it requires the publication of policies and practices that justifiably should not be published, the law intrudes into editorial processes.

The favoritism shown to the Targeted Constitutionally Protected Content. The law privileges the five categories in the Targeted Constitutionally Protected Content for heightened attention by services, but there are many other categories of lawful-but-awful content that are not given equal treatment. Why?

This distinction between types of lawful-but-awful speech sends the obvious message to services that they need to pay closer attention to these content categories over the others. This implicit message to reprioritize content categories distorts the services editorial prerogative, and if services get the message that they should manage the disclosed numbers down, the bill reduces constitutionally protected speech. However, services wont know if they should be managing the numbers down. The AG is a Democrat, so hes likely to prefer less lawful-but-awful content. However, many county prosecutors in red counties (yes, California has them) may prefer less content moderation of constitutionally protected speech and would investigate if they see the numbers trending down. Given that services are trapped between these competing partisan dynamics, they will be paralyzed in their editorial decision-making. This reiterates why the bill doesnt satisfy Zauderer uncontroversial prong.

The problem classifying the Targeted Constitutionally Protected Content. Determining what fits into each category of the Targeted Constitutionally Protected Content is an editorial judgment that always will be subject to substantial debate. Consider, for example, how often the Oversight Board has reversed Facebook on similar topics. The plaintiffs can always disagree with the services classifications, and that puts them in the role of second-guessing the services editorial decisions.

Social media exceptionalism. As Benkler et als book Network Propaganda showed, Fox News injects misinformation into the conversation, which then propagates to social media. So why does the bill target social media and not Fox News? More generally, the bill doesnt explain why social media needs this intervention compared to traditional publishers or even other types of online publishers (say, Breitbart?). Or is the states position that it could impose equally invasive transparency obligations on the editorial decisions of other publishers, like newspapers and book publishers?

The favoritism shown to the excluded services. I think the state will have a difficult time justifying why some UGC services get a free pass from the requirements. It sure looks arbitrary.

The Dormant Commerce Clause. The bill does not restrict its reach to California. This creates several potential DCC problems:

Conclusion

Stepping back from the details, the bill can be roughly divided into two components: (1) the TOS publication and delivery component, and (2) the operational disclosures and statistics component. Abstracting the bill at this level highlights the bills pure cynicism.

The TOS publication and delivery component is obviously pointless. Any regulated platform already posts its TOS and likely addresses the specified topics, at least in some level of generality (and an obvious countermove to this bill will be for services to make their public-facing disclosures more general and less specific than they currently are). Consumers can already read those onsite TOSes if they care; and the AGs office can already access those TOSes any time it wants. (Heck, the AG can even set up bots to download copies quarterly, or even more frequently, and I wonder if the AGs office has ever used the Wayback Machine?). So if this provision isnt really generating any new disclosures to consumers, its just creating technical traps that platforms might trip over.

The operational disclosures and statistics component would likely create new public data, but as explained above, its data that is worthless to consumers. Like the TOS publication and delivery provision, it feels more like a trap for technical enforcements than a provision that benefits California residents. Its also almost certainly unconstitutional. The emphasis on Targeted Constitutionally Protected Content categories seems designed to change the editorial decision-making of the regulated services, which is a flat-out form of censorship; and even if Zauderer is the applicable test, it seems likely to fail that test as well.

So if this provision gets struck and the TOS publication and delivery provision doesnt do anything helpful, it leaves the obvious question: why is the California legislature working on this and not the many other social problems in our state? The answer to that question is surely dispiriting to every California resident.

Reposted, with permission, from Eric Goldmans Technology & Marketing Law Blog.

Filed Under: ab 587, california, content moderation, disclosures, internet regulations, terms of service, transparency

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California Seems To Be Taking The Exact Wrong Lessons From Texas And Florida's Social Media Censorship Laws - Techdirt

Listen here or subscribe at Apple Podcasts, Spotify, Google Podcasts, or wherever you listen to your favourite podcasts. Stay updated on episodes via our Twitter page. If you would like to support the journalism of the Toronto Star, you can subscribe at thestar.com/subscribingmatters.

Guest: Allan Woods, global and national affairs reporter for the Toronto Star

As the Russian invasion of Ukraine enters its fourth long month, you may wonder, whats it like in Russia? In a country slipping into further isolation and sanctions, where information is tightly guarded, do Russians support this war or are they living in fear of government surveillance and censorship at home? According to Star reporter Allan Woods, the answer is as complicated as the country. Like many journalists, Allan fled Russia when the war broke out. He had lived in Moscow for over four years. He made a recent trip back to Moscow and he gives us a glimpse into a city that appears as electric as ever at least on the surface.

Audio sources: France24, PBS, Munk School of Global Affairs & Public Policy.

This episode was produced by Saba Eitizaz, Alexis Green and Matthew Hearn

Link:
Sanctions, censorship and war: What it's like living in Russia - Toronto Star

Reading Time: 3 minutes

Nobody would trust a real estate agent or used car dealership with that approach, but thats how the Trudeau government is trying to sell its plan to regulate the internet.

The government is trying to rush new censorship legislation through Parliament at lightning speed. Through Bill C-11, the Trudeau government plans to hand the CRTC the power to control what content Canadians can access online. This includes filtering feeds on popular apps like Netflix, YouTube and TikTok.

As if that wasnt bad enough, the government is deliberately choosing not to disclose the scope of these new regulatory powers until after the bill becomes law.

Such an approach runs roughshod over the democratic process.

If the government wants to ram through new censorship powers, at a bare minimum we deserve to know just how aggressively the CRTC will be instructed to regulate what we see and share online.

The government cant even get bureaucrats singing from its own hymnbook.

Heritage Minister Pablo Rodriguez has promised up and down that user-generated content, meaning content a typical Canadian might upload to YouTube or share on Twitter, will not be regulated through Bill C-11.

But Ian Scott, the chair of the CRTC, which will be responsible for applying the regulations on the governments behalf, says user-generated content will be fair game.

Who should Canadians believe?

If the CRTC says it will have the power to regulate user-generated content through Bill C-11, and theyre the ones tasked with implementing it, Canadians should listen to the CRTC.

As the government attempts to give itself sweeping new powers, it is worthwhile to ask why the government wants bureaucrats to have these new powers in the first place.

The government claims it wants to ensure Canadians are exposed to enough Canadian content online.

But this raises serious questions.

First, is the government competent to decide what should count as Canadian content?

Currently, the CRTCs process in making that determination is flawed. A biopic of the Trump presidency, entitled Gotta Love Trump, is considered by the CRTC as Canadian content, while The Handmaids Tale, based on legendary Canadian writer Margaret Atwoods famous novel, is not.

On the competence question, the answer clearly is no.

Second, what happens if the government decides it wants to use the CRTCs new powers to influence what we see and share online based on standards other than Canadian content?

Its easy to foresee mission creep. Today, the government wants to promote Canadian content. But tomorrow, with the CRTCs powerful new tools to regulate the internet, Bill C-11 could easily be repurposed to quiet dissent or promote favourable narratives. Public Safety Minister Marco Mendicino, for example, has mused about the government pursuing new regulatory measures for the sake of social cohesion.

With these clear risks, it is worth asking whether this legislation is even needed, as the government claims, to ensure Canadian content gains adequate exposure.

The truth is that Canadian content is thriving like never before. In 2020 alone, Canadas film and television industry enjoyed $6 billion in foreign investment, up five per cent from the year prior. And Canadian films and shows are easy to find on streaming services like Netflix.

If the sole rationale of Bill C-11 is to have Canadian content thrive and succeed online, then present data demonstrate that the legislation simply isnt needed. The government could just scrap Bill C-11 and call it a day.

The fact that Rodriguez and the Trudeau government are still aggressively pushing Bill C-11 in light of these facts demonstrates that the governments motive is not, as it claims, to promote Canadian content. Rather, it is all about control.

Jay Goldberg is the Ontario & Interim Atlantic Director for the Canadian Taxpayers Federation.

Jay is a Troy Media Thought Leader. For interview requests, click here.

The opinions expressed by our columnists and contributors are theirs alone and do not inherently or expressly reflect the views of our publication.

Troy MediaTroy Media is an editorial content provider to media outlets and its own hosted community news outlets across Canada.

Authoritarianism, Censorship, Free speech, Freedom, Internet, Totalitarianism, Trudeau government

Jay Goldberg spent most of his career in academia, where he was most recently a policy fellow at the Munk School of Public Policy and Global Affairs at the University of Toronto. He holds an Honours Bachelors Degree in Political Science from the University of Toronto, and a Master of Arts Degree in Political Science from the University of British Columbia.

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The Trudeau government is on a quest for censorship - Troy Media

TAIPEI, Taiwan

Most internet users trying to get past Chinas Great Firewall search for a cyber tunnel that will take them outside censorship restrictions to the wider web. But Vincent Brussee is looking for a way in, so he can better glimpse what life is like under the Communist Party.

An analyst with the Mercator Institute for China Studies in Berlin, Brussee frequently scours the Chinese internet for data. His main focus is information that will help him understand Chinas burgeoning social credit system. But in the last few years, hes noticed that his usual sources have become more unreliable and access tougher to gain.

Some government websites fail to load, appearing to block users from specific geographic locations. Other platforms require a Chinese phone number tied to official identification. Files that were available three years ago have started to disappear as Brussee and many like him, including academics and journalists, are finding it increasingly frustrating to penetrate Chinas cyber world from the outside.

Its making it more difficult to simply understand where China is headed, Brussee said. A lot of the work we are doing is digging for little scraps of information.

One of the most sweeping surveillance states in the world, China has all but closed its borders since the start of the pandemic, accelerating a political turn inward as nationalism is on the rise and foreign ties are treated with suspicion. A harsh zero-COVID policy has contributed to the attrition of foreign residents, particularly after a long and bitter lockdown this spring in Shanghai, Chinas largest and most international city.

At the same time, academics and researchers have complained that the digital window into China seems to be constricting too. That compounds a growing concern for China experts locked out of the country amid deteriorating relations with the West. A tightening of internet access means observers will struggle to decipher what internal pressures Chinas leader Xi Jinping may be facing and how to keep track of Beijings diplomatic, technological and military ambitions.

Comprehensive analysis on whom Chinas Great Firewall keeps out is scarce; much of the focus on the countrys internet freedom remains on domestic censorship. But many researchers who have experienced such challenges suspect that their limited access is part of Chinas attempt to ward off what it sees as international meddling, and present its own tightly controlled narrative to the outside world.

Several researchers, for example, noted difficulties accessing Xinjiang government data from abroad, likely a response to international criticism on reports of forced labor and human rights abuses against the western regions Uyghur population. More puzzling to Brussee was when he encountered similar barriers to the government website of Anhui province, a decidedly less controversial part of China.

Brussee said websites have also added guards against data scraping, limiting how much information he can retrieve via automation on public procurement of surveillance systems, policy documents and citizens or businesses affected by the social credit system. Some bot tests known as CAPTCHA require manual input of Chinese characters or idioms, another barrier for those unfamiliar with the language.

China is keen to project an image of power and superiority. But that has been undermined at times by embarrassing revelations, including recent videos of Shanghai residents protesting harsh lockdown restrictions. The posts were quickly wiped from the Chinese web but continued to circulate beyond the Great Firewall, challenging Beijings claims that its zero-tolerance COVID policy was better at containing the pandemic than programs in the West.

Comments on Chinas internet can also cast an unflattering light. Earlier this year, users on the nations Twitter-like Weibo platform drew condemnation for sexist comments welcoming beautiful Ukrainian women as war refugees. An anonymous movement that translates extreme and nationalistic posts from Chinese netizens has outraged state commentators who call it an anti-China smear campaign.

In order to squeeze through bottlenecks, Brussee uses a virtual private network, or VPN, which routes an internet users web traffic through servers in a different geographic location. Though its a commonly used tool for Chinese netizens to circumvent the Great Firewall, Brussees aim is to appear to be visiting websites from within Chinas borders.

But VPNs arent foolproof. Chinese authorities have cracked down, making connections in and out of China slow and erratic. Brussee said he went a month without a VPN last fall, when his main provider inexplicably stopped functioning. After five fruitless calls to the company, he could only wait for service to eventually resume. His last resort would be to use a Chinese company with more reliable servers inside the country, but he said installing Chinese software comes with additional security risks.

I dont think the VPN is enough anymore a lot of the time, said Daria Impiombato, a researcher at the Australian Strategic Policy Institute who uses VPNs to bounce around to different locations when trying to visit Chinese government websites. You find workarounds, but it takes way longer.

One alternative source of information that Impiombato has relied on is WeChat, the ubiquitous social messaging app owned by Chinese gaming giant Tencent. Many party agencies have their own pages on WeChat where they post notices, but it requires a lot of mobile scrolling to find the relevant material, she said.

Signing up for an account, however, has become more challenging for foreigners in recent years as Chinese platforms like WeChat, Weibo and others have implemented additional screening, such as a Chinese phone number and official identification. In some cases, those registration requirements can be more prohibitive than geoblocking, ruling out resources from online discussions to official documents to industry databases.

Graham Webster, editor in chief of the DigiChina Project at the Stanford University Cyber Policy Center, has searched for a way to use Weibo since losing the use of his Chinese phone and subsequently his account. The closest solution he could find was a service that provided temporary, and he suspected fraudulent, phone numbers.

We are talking about something that would be on the internet for one-fifth of the worlds population and not for the other four-fifths, Webster said. This is one more wedge in a steepening curve of barriers between China and the outside world. It leaves a lot more ground for suspicion and uncertainty.

Blocking foreign internet users, particularly from sensitive information, is not unique to China. According to a 2020 report from Censored Planet, which studies internet freedom and censorship, the U.S. government had blocked about 50 websites from being viewed from Hong Kong and mainland China, including official military home pages and stores of economic data.

But Chinas control of information appears more expansive. The government, according to researchers and academics, had made files and data available online over the last decade. But in recent years as China has become more sensitive about its global image and more critical of the West that degree of openness has run into a trend to deter outsiders from peering in.

Its the effort of openness coming up against the current push towards closedness, said Maya Wang, senior China researcher at Human Rights Watch. The result is some strange hybrid landscape, where you can have access to a lot of information if you go through all these hoops, specifically because they are not designed for you to have access to them.

Some who have developed ways to bypass blocks were reluctant to share details, aside from generally trying to emulate a Chinese location, fearing those channels would be plugged as well.

Describing to a newspaper the workarounds to access blocked Chinese sites ensures that the workarounds will be blocked, too, one U.S. academic researcher wrote via email. The only thing I can add, without cutting short my own career, is another common sense measure, namely, scrape and cache whatever one discovers the first time around.

Thats turned into standard practice for Impiombato, who has grown paranoid about saving her own copies of everything as government web pages, news releases and social media posts have vanished unexpectedly amid her research.

Sometimes you see the perfect piece of information that you need and then suddenly its gone, she said. You almost have to start from scratch every single time.

Katherine Kaup, a professor at Furman University who studies Chinas ethnic policy, said the countrys changes have forced her and others to consider entirely new research topics and techniques. She has reservations about one day returning to China for field work, and even virtual discussions with people in the country have been dampened by concerns over repercussions for speaking too frankly amid a growing clampdown on dissent.

I sometimes feel like Im in a bad sci-fi movie, she said. The type of research that we used to do is not going to be possible moving forward in the next few years.

See the rest here:
As China shuts out the world, internet access from abroad gets harder too - Los Angeles Times

No free pass for intermediaries, appeared to be the general sentiment pervading the first public consultation on the proposed amendments to the IT Rules, 2021 held yesterday.The Ministry of Electronics and Information Technology (MeitY) took particular note of unnamed intermediaries that have not fully complied with the IT Rules, 2021, spotlighting their refusal to take action on harmful content on their platforms citing safe harbour obligations.

Why it matters: Stakeholders aired their initial questions and concerns with the Rules with the Ministry yesterday. MeitYs responses shed light on its current outlook on all intermediaries operating in Indias Information and Technology sector, i.e., they must comply with Indian platform regulation laws.

Released on June 6th, the proposed amendments to the IT Rules, 2021, aim to curb the harms of Big Tech and improve user grievance redressal. In the same breath, they have raised concerns for both users of the Internet and stakeholders across Indias Information and Technology sector. As MediaNama has previously reported, who they apply to remains unclear in the draft. The proposed changes may also spur censorship by intermediariesincluding social media companies. A newly formed redressal Committee may result in overt government influence over speech online.

In yesterdays meeting, the Ministry repeatedly referred to intermediaries non-compliance with the IT Rulesleading to increasing complaints from users on faulty grievance redressal mechanisms. Describing the Rules as part advocacy and part rule-making, the Ministry added that it hopes the rules will ensure compliance by intermediaries. MeitY stated that the Rules move away from policies without principles and would enable an open, safe, transparent, and accountable Internet for Indians. It added that it was committed to improving the ease of doing business in India, and in no way wanted to stifle the operations of start-ups.

Responding to a question on who the Rules applied to, it stated the definition of intermediaries remained the same as when the Rules were first notified last February. This indicates that the Rules may be applicable to all intermediaries listed under the Information and Technology Act, 2000 (IT Act). Describing the IT Act as a mezzanine law for Indias Information and Technology sector, the Ministry hinted toward a contemporaneous law in the making that would address the issues raised by the stakeholders and centre user harm. It suggested that a consultation on the law was forthcoming.

The discussion was chaired by Rajeev Chandrasekhar, Minister of State for Electronics and Information Technology, and senior officials from MeitY. Held in a hybrid format with over 50 physical participants and close to 100 virtual attendees, the consultation drew lawyers, researchers, industry bodies, and representatives from Indias intermediaries.

The proposed amendment to Rule 3(1)(a) directs Intermediaries to enforce their terms of service, user agreement, and rules and regulations. The proposed amendment to Rule 3(1)(b) causes the user not to transmit certain kinds of content onlinethese include content that belongs to someone else, is harmful to children, harms national integrity, or is defamatory in nature.

When Should Platforms Moderate Content?:Representatives of industry bodies repeatedly questioned how these rules should be enforced by intermediaries. That is, should intermediaries monitor content before it is published through proactive content filtering mechanisms? Or, should they monitor content once it is published?The former could give rise to pre-censorship by intermediaries eager to over-comply with the law. The latter could involve monitoring at a logistically infeasible scale for intermediaries.

MeitY stated that ensuring compliance with the Rules does not imply proactive content moderation. Rather, once an intermediary receives notice that a piece of posted information violates the Rules, they should act to take it down immediately. A Ministry representative added that Rules 3(1)(d) and 3(1)(g) clarify how content moderation can be operationalisedthe amendments merely seek to mandate that these rules are enforced. MeitY reiterated its stance that intermediaries have to comply with Indian laweven if it affects their business models or technologies.

The Ministry appeared open to adding clarificatory language on post-facto content moderation procedures. It also suggested submissions from those attending on how to operationalise these provisions.

Do the Rules Challenge Shreya Singhal?:Others added that the Rules may challenge the Supreme Courts 2015 verdict inShreya Singhal v Union of India, by delegating the interpretation of lawful or unlawful content to intermediaries. Similar iterations of this question cropped up during the meeting.

The Ministry responded that it was moving away from policies without principles. MeitY envisions an Internet that is open, safe, and accountableso, whatever content falls afoul of Indian law and intermediary rules needs to be acted on. Intermediaries are not being asked to judge legality.

Do All Intermediaries Have the Capacity to Comply with the Rules?: Some stakeholders added that implementing these amendments differs based on the intermediary, information, and user action. Smaller intermediaries may not have the proximity to information or know-how to cause a user not to upload something. Checking the legality of certain types of information, like hyperlinks, may be difficult to do for these types of intermediaries. Finally, the definitions of the content types prohibited online were vague and expansiveleaving Indian internet users with a wide range of things that they cannot do. Other representatives requested that some of these content types be struck down from the Rules, adding that whether content is defamatory, insulting, or inflammatory is a question even Courts struggle with.

After listing the different types of concerning speech listed in Rule 3(1)(b), as well as their various modes of transmission, MeitY firmly disagreed with the proposition that they were too broad. The Rules, it stated, have been designed to ensure absolute clarity on the nature of accountability the Indian government desires. However, it added that it was not wedded to the language used in the provision, and would consider submissions requesting the clarification of terms used in the amendment.

Rule 3(1)(m) directs intermediaries to ensure the accessibility of its services to users, complemented by reasonable due diligence, privacy, and transparency. Rule 3(1)(n) adds that the intermediary should respect the rights afforded to Indians under the Constitution of India.

How is Accessibility Defined?Stakeholders present raised concerns over the definition and scope of accessibility itself. For example, Rule 3(1)(m) can be interpreted as ensuring that there is no discrimination in services provided to users. However, it could also be interpreted as ensuring intermediary services are accessible to the disabled. Some added that it was unclear as to what steps would need to be taken to ensure accessibility. They inquired whether failure to comply with the provision would lapse the safe harbour provision for the intermediary.

The Ministry appeared ready to issue fresh language on the definitions. On the question of procedure, it stated that this was a matter of availability and access. Describing the provision as an unproblematic omnibus clause, MeitY added that no service can be availed of by only certain groups of people.

Will the Rules Impact Start-ups?:Notwithstanding this definitional confusion, multiple stakeholders representing industries noted that Rule 3(1)(m) may negatively impact start-ups and smaller intermediaries. These entities may simply not have the capacity to ensure accessibility to all users. The provision may also increase compliance costs for them. Additionally, they questioned whether a private entity can be compelled to provide a user a service, given that they are usually bound by a contractual relationship.

Linking its response to Indias tryst with Net Neutrality in the late 2010s, the Ministry responded by stating that no platform can deny a user access to a service. Describing the question of compliance costs as a bland claim, MeitY reiterated that it in no way sought to impede the growth or interests of start-ups. It appeared open to submissions on potential material harms to start-ups as a result of the provisions.

Are the Rules Practicable?:Some stakeholders added that the nature of accountability desired by the Ministry has to be practicable. That is, the intermediary has to be able to actually implement the provision.

Intermediaries set out to conquer the world with a set of assumptions [on how they will operate], responded the Ministry. However, it concluded that the governments of the world have now woken up to keep citizens on the Internet safe. In short, if an intermediary believes a law is impractical, then that cant be a valid reason to change the law.

The Ministry added in another response that constitutional rights have been included in the Rules to ensure non-discrimination by intermediaries in grievance redressal. It stated that it had received many emails suggesting that the language in Rule 3(1)(n) was too soft in asking intermediaries to respect the Constitution. It stated that it may be inclined to harden the language of this provision.

The amendments to Rule 3(2)(a)(i) direct the Grievance Officers of an intermediary to acknowledge complaints relating to violations of Rule 3(1)(b) within 24 hours. Actions included in acknowledgement are suspension, removal or blocking of any user or user account. The complaint should be redressed within 72 hours.

Is the Intermediary an Arbiter of the Law?:Some stakeholders present argued that the lists of prohibited content under Rule 3(1)(b) were open to subjective interpretationdisposing of them in 72 hours may result in the intermediary hastily adjudicating on content. They cautioned that the intermediary should not become an arbiter of the provisions.

The Ministry stated that it was clear that intermediaries are not arbiters. They are simply encouraged to do their jobsthat is, enforce moderation policiesthrough the amendment. It added that viral content spreads much faster online, making the offline mechanism of approaching the Courts for takedowns infeasible. Approaching the judiciary may also raise barriers for Indian users of the Internet seeking grievance redressal. Can we ask someone in a village to file a Writ Petition against someone sitting in Menlo Park?

Some stakeholders submitted that the 72-hour redressal window may conflict with Prajwala v Union of India.A Supreme Court case concerning the circulation of child pornography online, Orders issuedby the Court dictate that such content should be expeditiously taken down by authorised officials within specified timelines. Stakeholders present suggested that content types like child pornography should be treated sensitively, with grievances addressed within a faster timeframe.

The newly inserted Rule 3(3) proposes the formation of a Grievance Appellate Committee (GAC). The GAC is an alternative redressal mechanism to approaching the Courts for users appealing decisions taken by Grievance Officers. Intermediaries must comply with Orders passed by the GACwhose members will be appointed by the Union government.

What is the Legal Basis of the GAC?: Representatives of industry bodies questioned whether the Rules are empowered to institute a quasi-judicial body like the GAC, without the parent statute (the Information and Technology Act, 2000) enabling it.

The Ministry responded by noting the rise in complaints received since the enactment of the IT Rules last year. It claimed that intermediaries appeared to be applying the Rules arbitrarily, leading to more Court cases and appeals to MeitY on these matters. The GAC acts as a middle layer of grievance redressal between the intermediary and the Courts. It also acts as a disincentive for platforms that are currently not fulfilling their grievance redressal obligations under the IT Rules.

Are There Alternatives to the GAC?: Noting the Ministrys comments on GAC emerging from the absence of a credible self-regulatory mechanism for intermediaries in India, representatives of industry bodies and prominent social media intermediaries probed whether MeitY would be open to such a mechanism in the future.

The Ministry emphatically stated that it is open to such a mechanismthe burden of grievance redressal is not something the Union should have to take on. It described the GAC as a mezzanine intervention until intermediaries step in with a better solution in the near future. It appeared open to receiving proposals on such self-regulatory bodies.

How Will the GAC Function?:Many stakeholders requested clarifications from the Ministry on the composition of the GAC, and the various functions its members would perform. With some citing Supreme Court verdicts, stakeholders further probed whether an adjudicatory Committee can be set up without members of the judiciary present.

The Ministry stated that the government will constitute the Committee in a transparent manner. It reiterated that it has no desire to form a body like the GACand that intermediary non-compliance had forced it to step in.

Will the GAC Affect Fundamental Rights?:Some stakeholders further added that by adjudicating on intermediary decisions, the GAC may essentially become one of the arbiters for what constitutes lawful speech online. This may lead to censorship. Clarifying the procedures of the Committee in the Rules would be useful to ensure no violation of Fundamental Rights takes place.

Describing concerns of censorship as a purist argument, the Ministry reaffirmed that the GAC simply incentivises platforms to follow their own rules and the laws of India.

Some stakeholders representing commercial enterprises welcomed the formation of the GAC, noting that they had been on the receiving end of ineffectual Grievance Officers. They suggested introducing a penalty for intermediaries for every act of non-complianceat an amount as small as one rupee.

The Ministry noted that currently, the worst penalty an intermediary can face is losing safe harbour under Section 79 of the IT Act, 2000. Noting that it had not currently envisioned financial penalties on intermediaries, it appeared open to considering them in the future.

Some stakeholders suggested that before content gets taken down under Rule 4(8)(a), users be provided a hearing to appeal the decision, as post-facto appeals are hard to obtain from intermediaries. Others suggested introducing penalties for intermediaries who have wrongfully taken down a users accountas this amounts to a civil debt for them.

Some also suggested a graded system of penalties for intermediariesinstead of blocking their services under Section 69(a) of the IT Act, 2000, for non-compliance. They suggested temporarily blocking the onboarding of new users to penalise such intermediaries, arguing that this strategy worked well in the RBI-MasterCard standoff over the last year.

Other stakeholders wanted the GAC to operate as an Online Dispute Resolution mechanismto mitigate the prohibitive costs of appearing in person for hearings. Stakeholders added that the body should include consumer or user representatives, as they are on the receiving end of lacklustre grievance redressal.

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Censorship fears over India's IT Rules as wrangle continues with MeitY - MediaNama.com

Proceeds from an auction of an unusual edition of Margaret Atwoods classic dystopian novel The Handmaids Tale will go to the free expression advocacy group PEN America, as the group stands up to right-wing attempts to ban books in the United States.

The single copy of the novel is made entirely of flame-resistant material, as evidenced in a video released on May 24 in which Atwood herself attempted to light the book on fire.

Atwood and the publishing company Penguin Random House announced Monday that the book will be auctioned off at Sothebys New York, both to help PEN America fight censorship and as a challenge to enacted and attempted book bans.

To see her classic novel about the dangers of oppression reborn in this innovative, unburnable edition is a timely reminder of whats at stake in the battle against censorship, said Markus Dohle, CEO of Penguin Random House.

The publisher worked with Atwood, PEN America, the Toronto-based creative agency Rethink, and a bookbinding studio called the Gas Company to create the book.

The flame-proof copy is made of thin sheets of Cinefoil, an aluminum product, and was sewn together using nickel copper wire.

The creation of the book comes as attempts to ban books by lawmakers and school districts have surged to their highest level since the American Library Association began recording such censorship two decades ago.

The group reported 729 challenges to materials in schools and libraries. Last week, more than 1,000 childrens book authors and artists signed a letter condemning the efforts by organized groups to purge books from our nations schools.

The Handmaids Tale was banned in schools in Texas and Kansas last year.

According to PEN America, as Republicans center their 2022 electoral campaigns largely on protesting the teaching of the United States long history of racial injustice and discussions of gender identity in public schools, GOP lawmakers in 42 states have proposed nearly 200 pieces of legislation seeking to limit school discussions of such topics.

The unburnable copy of The Handmaids Tale is an unforgettable visual metaphor for the current political climate in the U.S., Atwood said.

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Battle against censorship: Fire-Proof edition of "Handmaid's Tale" released to fight GOP book-banning - Milwaukee Independent