LILIAN EDWARDSPROF OF E -GOVERNANCE

STRATHCLYDE LAW SCHOOL

MARCH 2012LILIAN.EDWARDS@STRATH.AC.UK

PANGLOSS: HTTP: / /BLOGSCRIPT.BLOGSPOT.COM

@LILIANEDWARDS

Social media, activism and democracy : friend or foe?

Summary

The myth of social media as the ally of activism, free speech and democracy – Clay Shirky, 2008 – “techno utopianism”

Vs1. Twitter’s “censorship” policy announced

Jan 20122. The London riots summer 2011 and state

surveillance of social media3. The Wikileaks takedowns of late 2010 –

private intermediary activity

“Friend” : Arab Spring 2011

Social media and the Arab Spring

• Doubts? – Evgeney Morozow, Tor

“Foe”: Do social media actually enable/ reinforce state control?

Obvious examples of state control: Great Chinese Firewall

Freedom of the Net Survey 2011 of 37 countries cites Increased web blocking Filtering and content manipulation Cyber attacks (DDOS) Coercion of website owners, punishment of ordinary users

Egypt “internet kill switch” – January 2011; Syria, June 2011; Bahrain, deliberate slowing of net

Issues: bottlenecks to net (4/5 Egyptian major ISPs), economic costs – OECD estimate 5 day Egypt block cost $90m (Feb 11)

State sponsored spin – China, US, Russia..

UK use of social media?

AND –Twitter, Jan 26 2012

“Starting today, we give ourselves the ability to reactively withhold content from users in a specific country — while keeping it available in the rest of the world. We have also built in a way to communicate transparently to users when content is withheld, and why.”

Transparency – notice to tweeter if possible, Chilling Effects Clearinghouse, content marked

On what authority? Court order? Notice from private body? “authorised body”?

What if Egypt had requested all tweets re Tahrir Sq banned? “…we will enter countries that have different ideas about the contours of freedom of expression. Some differ so much from our ideas that we will not be able to exist there.” ??

1. Social media as surveillance tool

Summer riots in London and rest of England12,000 arrests in London, C 1400 persons

prosecuted & sentenced in UKOver half 20 or under, ¼ under 17, 43% of juveniles

no previous criminal record, main offence burglary not violence

Sentences over twice as serious as would be normal for offence

“In my judgement the context in which the offences of the night of 9th August were committed takes them completely outside the usual context of criminality. “

2 jailed for 4 years for inciting riots via FB pages - even tho no riot ensued (Blackshaw/Sutcliffe)

Technology sur(?)veillance & its legality?

Surveillance of “walls” and profiles on social networking sites – evidence extensively used in the trials from FB, Twitter

Surveillance via hashtags eg #UkuncutFace recognition technology to match rioters to FB pages

and vice versa? (cf Acquisti et al work, 2011 identified 1/3 by matching pic taken outside to FB pic - > real name etc)

Use of fake profiles to “Friend” suspects & get data?“Interception” and “decrypting” of encrypted texts sent

on Blackberry Message (BBM) network.RIM “engaged with authorities” – voluntarily searched db

and decrypted results? By keywords eg “riots”?

"Everyone from all sides of London meet up at the heart of London (central) OXFORD CIRCUS!!, Bare SHOPS are gonna get smashed up so come get some (free stuff!!!) fuck the feds we will send them back with OUR riot! >:O Dead the ends and colour war for now so if you see a brother... SALUT! if you see a fed... SHOOT!“Blackberry Message (BBM)

LONDON RIOTS , Summer 2011

Legal controls over surveillance of SNS posts?

“Of course” police can surveille public posts - they’re public!

vsBartow “Facebook [is] a giant surveillance tool, no

warrant required, which the government can use in a mind bogglingly creative range of ways with almost no practical constraints from existing laws”

(review Semitsu 31 Pace L Rev 291)Why? US - No reasonable expectation of privacy -

established acceptance of evidence in crime, matrimonial, insurance, employment etc litigation

-> No Fourth Amendment anti-search rightsNo general US privacy law.. No DP..

Legal controls – UK? - 1

SNS profile data clearly personal data, possibly sensitive personal data - > “explicit consent”

Data Protection Act 1998 – strict controls on collecting/processing data without consent

BUT – s29 DPA – exempts personal data where processed for prevention or detection of crime

How often will this not be invocable re activism?And DPA Sched 3 r 5 – consent NOT required

even to processing SPD where data “has been made public as a result of steps deliberately taken by data subject”

Legal controls – UK? - 2

Regulation of Investigatory Powers Act – RIPA 2000 – UK attempt to “art 8 proof” police interceptions etc after ECtHR criticism

O’Floinn and Ormerod 2011 Crim LR 766 argue repeated surveillance or monitoring of public FB profile could be “direct surveillance” -> authorisation needed

Especially if data also recorded and systematically processed eg data mined & profiled

RIPA & SNS monitoring as “direct surveillance”

DS needs to be : covert but not intrusive; likely to result in obtaining “private information “ re person; aimed at specific person, investigation not just general monitoring

Covert: What is user expectation re public profile? That police will/may read it? Once? More than once? Record it?

Cf privacy in public – von Hannover ECHR caseIs the info “private”? S26 (10) “includes any

information relating to his private or family life”Investigation? #UKuncut or %“Start a riot”–

not “Jordan Blackshaw”

Interim conclusions

Privacy protections designed to implement art 8 of ECHR don’t map well to a world of semi-public semi-private SNS posts

Activism use of SNSs is unlikely to be Friends Only? If purpose is to gain support.

“Private info” online is searchable, identifiable (via SNS/ISP etc), recordable, able to be profiled and connectable to “real world” via face recogn

Wide DP exemptions re crime can be (and are) easily extended / abused (might Draft EC Directive 2012 on police and DP help?)

Regulation has thought about sur-veillance – Panopticonism – not sous- or co-veillance..? (Brin, Mann)

2. Online free speech and privatised censorship – the Wikileaks affair

28 Nov 2010: “patriot” DDoS attack hits WikiLeaks as first set of US diplomatic cables is published.

3 December 2010: Amazon Web Services stops hosting Wikileaks, citing ToS; hit by DDOS attacks

3 December 2010: WikiLeaks.org ceases to work for web users after everyDNS.com claims DDOS attacks against WikiLeaks were disrupting its service provided to other customers.

4 December 2010: PayPal permanently restricts account used by WikiLeaks (later, M/card, Visa, Postfinance)

8 December 2010: DDoS attacks take down PayPal, Visa, Mastercard, “Anonymous” /Operation Payback claims responsibility, using LOIC to create DoS attacks

13 December 2010 : Amazon in Europe goes down for 30 mins - denies DDOS cause

Anonymous’s grounds for “censorship”

"We're against corporations and government interfering on the internet," Coldblood added. "We believe it should be open and free for everyone. Governments shouldn't try to censor because they don't agree with it”.

Guardian 8 DecemberBut DDOS is criminal in

most jurisdcitions

The First Great Infowar?

AWS’s grounds for “censorship”

AWS: “ “you represent and warrant that you own or otherwise control all of the rights to the content… that use of the content you supply does not violate this policy and will not cause injury to any person or entity.” It’s clear that WikiLeaks doesn’t own or otherwise control all the rights to this classified content. “

= copyright infringement argument.Notice -> liability as publisher (DMCA) unless

takedownBut in US government documents are free of

copyright ? (cf UK)AWS retain discretion to interpret T of S and probably

further discretion.

Intermediary legal risks as hosts

Should Amazon have taken down Wikileaks? Possible criminal liability as publisher under US

Espionage Act Possible civil liability: copyright documents? (tho

under US law , probably not); trade secrets? Libel? Protection? S 230 © CDA does not cover criminal

liability. (In EU, ECD protection vanishes on notice to take down.)

Risks to revenues/shareholders Risks to staff/CEA including jail PR risks , loss of goodwill – much opposition to

Wikileaks in US, collateral damage from DDOSYet in Europe..

“if you don’t support freedom of expression, why are you selling books?”

So what did happen to Wikileaks?

"Suppose you are the proprietor of an information service. …The information you provide is greatly upsetting to powerful people who would prefer to keep it a secret. You have been charged with no crime, much less convicted of one. But one day, you discover that all of these payment systems – quite obviously responding to pressure from the government but citing no actual legal authority – are refusing to accept money from your customers on your behalf.

This, sadly, is not a supposition. It is nearly the precise situation that WikiLeaks has encountered since late last year.. forcing the whistleblowing media operation to suspend all activity except fundraising in a struggle merely to survive… …if this was happening to any traditional media company, it would be a scandal, and the media in general would be screaming about the threat to free speech it represented. Dan Gilmore, Guardian, Oct 24 2o11

Wikileaks March 2012

“WikiLeaks: 463 days of banking blockade - no processAssange: 460 days detainment - no chargeManning: 657 days in jail - no trial”

“We are forced to put all our efforts into raising funds to ensure our economic survival. For almost a year we have been fighting an unlawful financial blockade. We cannot allow giant US finance companies to decide how the whole world votes with its pocket.”

More interim thoughts

Who was the corporate social responsibility of AWS owed to? To their users? Shareholders? The public? “Freedom of speech?”

Are Internet host/cloud intermediaries in any way comparable in ethics to traditional publishing intermediaries like newspapers – “publish and be damned” – responsible journalism?

Search intermediaries? Get site blocked on Google = disappears. Being attempted by © lobby also. Google does maintain Transparency Report re govt (and court order) take downs etc.

Even less traditionally ethical – payment intermediaries

Overall conclusion…

Naughton , Guardian 26 Feb 2012“Facebook is now a semi-public space in which

political and other potentially controversial views are expressed. Amazon is well on its way to becoming a dominant publisher. Google has the power to render any website effectively invisible. Given that freedom of speech is important for democracy, that means that these giant companies are now effectively part of our political system. But the power they wield is, as Stanley Baldwin famously observed of the British popular press in the 1920s, "the harlot's prerogative" – power without responsibility.”

Solutions?

Corporate social responsibility and ethical frameworks? re online intermediaries – Global Network Initiative, inc Google, M$, Yahoo!; EC working with IT industry on CSR but not re freedom of speech.

International rules on immunity. US hosts have CDA s 230© total immunity re publication torts (though not crime or ©). EC hosts are fully liable on notice , hence “Notice and Take Down ” (NTD) paradigm.

International Internet Bills of Rights re freedom of speech online? IGF; CoE work. ECHR unhelpful. Brown and Korpff call for less national margin of appreciation, more certitude on “horizontal effect”, requirements of judicial warrant/ transparency for takedown.