This Week in Congress Update: Markups on 702 and Online Speech

November 9th, 2017

Awake Goy

This Week in Congress Update: Markups on 702 and Online Speech

By ns_adminhttp://www.campaignforliberty.org/week-congress-update-markups-702-online-speech

Today the House Judiciary Committee is marking up the U.S. Liberty Act, the phony 702 reform bill. During the mark-up, Texas Representative Ted Poe and California Representative Zoe Lofgren plan to shut the backside loophole. This is where U.S. intelligence agencies use the pretext of surveilling a foreign citizen not on U.S. soil to survey a U.S. citizen. The Liberty Act claims to close that loophole but only for criminal investigations that are a small percentage of backdoor searches. The Liberty Act still allows the use of backdoor searches to determine if a crime has been committed or to blackmail someone into cooperating with the government.

Here is a letter Campaign for Liberty co-signed in support of the Poe-Lofgren amendment:

November 6, 2017

Dear Members of the House Judiciary Committee:

We, the undersigned 43 civil liberties, civil rights, and transparency organizations, urge you to support the shut the backdoor amendment, offered by Reps. Ted Poe (R-TX) and Zoe Lofgren (D-CA), to help close the backdoor search loophole when the House Judiciary Committee holds a markup for the USA Liberty Act, set for Wednesday.

The USA Liberty Act reauthorizes Section 702 of the FISA Amendments Act, which allows collection of foreign intelligence information but sweeps in U.S. person communications. The government uses the loophole to search its massive databases without first obtaining a court-issued warrant based on probable cause for information about U.S. persons and persons inside the United The USA Liberty Act reauthorizes Section 702 of the FISA Amendments Act, which allows collection of foreign intelligence information but sweeps in U.S. person communications. The government uses the loophole to search its massive databases without first obtaining a court-issued warrant based on probable cause for information about U.S. persons and persons inside the United States. As Sen. Feinstein recently noted, these searches violate the Constitution and undermine Americans right to privacy.

Sincerely,

18MillionRising.org Advocacy for Principled Action in Government American Civil Liberties Union American Library Association American-Arab Anti-Discrimination Committee Association of Research Libraries Brennan Center for Justice at NYU School of Law Campaign for Liberty Center for Democracy and Technology Center for human rights and Privacy Center for Media Justice Center for Popular Democracy Color Of Change Constitutional Alliance Council on American Islamic Relations (CAIR) Daily Kos Defending Rights & Dissent Demand Progress Action Electronic Frontier Foundation FirstAmendment.com Free Press Action Fund Free the People Freedom of the Press Foundation Government Accountability Project Government Information Watch Liberty Coalition Media Alliance National Coalition Against Censorship National Immigration Law Center National LGBTQ Task Force Action Fund New America’s Open Technology Institute Oakland Privacy OpenTheGovernment People For the American Way Presente.org Restore The Fourth RootsAction.org SumOfUs The Constitution Project UltraViolet Union for Reform Judaism Win Without War Yemen Peace Project

Marcy Wheeler exposes another problem with the underlying bill and the managers amendment here. (Unfortunately she takes an anti-liberty view on gun rights and is sympathetic to the second Civil War narrative but her analysis of the dangers of the legislation is spot-on).

Also today the Senate Commerce Committee will be marking up S. 1693. This bill amends Section 230 of the Communications Decency Act to make online platforms, such as Facebook or Google, liable for criminal activities of people who post on them.

This is obviously raises serious first amendment concerns.

A mangers amendment supposedly fixed the problems but of course it did no such thing. Here is a letter co-signed by Campaign for Liberty explaining the dangers of this bill:

The Honorable John Thune Chairman, Senate Commerce Committee United States Senate Washington, DC 20510

The Honorable Bill Nelson Ranking Member, Senate Commerce Committee United States Senate Washington, DC 20510

7 November 2017

Dear Chairman Thune, Ranking Member Nelson, and Members of the Committee,

We, the undersigned human rights and civil liberties organizations, trade associations, and individuals write to convey our significant concern with the Managers Amendment to S.1693, the Stop Enabling Sex Traffickers Act (SESTA), which the Committee will consider on Wednesday. We appreciate and support the bill sponsors deep commitment to fighting human trafficking, and we recognize that the Managers Amendment is an effort to respond to many of the concerns that we and others have voiced over the original draft of the legislation. But the Managers Amendment does not resolve some of the fundamental issues with SESTA that we believe will lead to increased censorship across the web.

In the United States, Section 230 of the Communications Act has proven as important as the First Amendment in supporting freedom of speech online. Section 230s protections against liability under state law and federal civil statutes ensure that online intermediaries can host a diverse array of information, ideas, and opinions without facing the chilling effect of potential litigation. Section 230 also guarantees that intermediaries can moderate the speech on their services and engage in good Samaritan blocking and filtering of objectionable content.

SESTA would undermine these key features of Section 230 and the Managers Amendment does not resolve these issues. It keeps SESTAs underlying approach of expanding the potential of federal and state criminal and civil liability for intermediaries based on speech posted by their users. This would create an incredibly strong incentive for intermediaries to err on the side of caution and take down any speech that is flagged to them as potentially relating to trafficking.

This would also create an environment ripe for a hecklers veto, enabling an individual to target a platform with a lawsuit if he disagrees with the speech the platform hosts. The financial toll of litigation costs in this environment would be a significant burden for all platform hosts. Small and medium platforms are particularly vulnerable to being driven out of business due to the sheer expense of litigation, even if they successfully defend a lawsuit a fact that could be leveraged by those seeking to censor.

Smaller intermediaries would also find it more difficult to compete with giant, established platforms who may be able to accept this new liability risk as a cost of doing business as a content host. Running a platform for third-party debate and discussion would become a much riskier and more expensive proposition. This could mean a further withering of the diversity of online platforms for speech and a closing down of spaces for diverse viewpoints online.

Pressures on intermediaries to prevent trafficking-related material from appearing on their sites would also likely drive more intermediaries to rely on automated content filtering tools, in an effort to conduct comprehensive content moderation at scale. These tools have a notorious tendency to enact overbroad censorship, particularly when used without (expensive, time-consuming) human oversight. Speakers from marginalized groups and underrepresented populations are often the hardest hit by such automated filtering.

Small and medium businesses will have fewer resources to devote to implementing the technical tools needed to comply with the law and to defend against overly aggressive lawsuits. Nonprofit and non-commercial platforms often have even fewer resources and opportunities for outside investment than small commercial platforms. Many of these smaller platforms would likely respond to the increased liability risk with broader takedown policies that will sweep in constitutionally protected speech.

Crucially, Section 230 does not, and has never, prevented intermediaries from facing federal criminal charges. Congress amended the federal criminal law against trafficking, 18 U.S.C. 1591, through the Stop Advertising Victims of Exploitation Act in 2015 and has enacted or renewed a number of other anti-trafficking laws over the past several years. Congress should pursue other avenues to combat this very serious issue and avoid undermining the statute that has served, for over 20 years, as the foundation for free speech online.

Sincerely,

Access Now Campaign for Liberty Center for Democracy & Technology Citizen Outreach Committee for Justice Demand Progress Action Electronic Frontier Foundation Engine FreedomWorks National Coalition Against Censorship New Americas Open Technology Institute R Street

Jane Bambauer, University of Arizona, James E. Rogers College of Law* Eric Goldman, Santa Clara University School of Law Daphne Keller, Stanford Center for Internet and Society Alexandra Levy, University of Notre Dame

* Institutions listed for identification purposes only.