Social media, surveillance and censorship

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Talk delivered at European University Florence, March 2012. Did the Aran spring really prove that social media enables the flowering of democracy or are social media in fact easy venues for blanket state surveillance? Can they be arenas for free speech when platforms likeTwitter are refining their censorship policies to avoid legal risk?

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  • Occupy movement – not just Arab spring – western anti-cuts, #ukuncut, #occupy, anti capitaism, anti Walll St – e are the 99% etc“Blogs, video and social networking sites have become a key forum for political debate and organisation” – Brown and KorpffI even wrote myself in 2010 about use of social media in the fiht against the Sigital Economy Act – deliberative democracy
  • This 37 included 8 C of E members – 4 ranked free – Estonia, Germany, Italy, UK4 “Partially free” – Azerbaijan, Georgia ,Russia, Turkey
  • Before going on to explore other ways in which content can be blocked, restricted or buries online, not just by state but by private intermediaries, want to look at how state authorities used social media during the London riots48% of 1000 adults polled said they would approve this (Nov 2011) and that LEAs should be able to access dat from social networks to improve public safety
  • But noteTwitter lets you set your location as Worldwide so nothing will be filtered &Fact that tweet is blocked one jurisdn not globally means Streisand effect/ RT g will cut inThus deterring most from seeking to get Twitter to censorBut still meaning Twitter can protct itself from legal risk (NTD)
  • Surveillance – sousveillance – post Panopticism
  • 3. Surveillance via facebook
  • ECHR crits – not acc to law, not necessary in democratic society (that one OK after Klass ) , not proportionate
  • But in fact AMAZOn censored – not US govt at least not overtly.4 chanAnti corporations anti those opposing filsharing, taking doiwn P2P sites etc
  • Copyright law – the answer to anything even Julian Assange
  • Wikileaks had found other hosts and mirrors but..Gillmorsuggests payment organisations like Paypal or Visa be treated like "common carrier"sie akin to telcos and postal services , with a duty to accept and pass on payments to any customer who presents themselves in return for limitation of liability as to what messages they carry.
  • Hard law – could be based on Art 10 ECHR – similar speech guarantees elsewhere – CoE has soft guidelines on responsibilities of search engines , Isps etc.
  • Social media, surveillance and censorship

    1. 1. Social media, activism anddemocracy : friend or foe? LILIAN EDWARDS PROF OF E-GOVERNANCE STRATHCLYDE LAW SCHOOL MARCH 2012 LILIAN.EDWARDS@STRATH.AC.UK PANGLOSS: HTTP://BLOGSCRIPT.BLOGSPOT.COM @LILIANEDWARDS
    2. 2. Summary The myth of social media as the ally of activism, free speech and democracy – Clay Shirky, 2008 – ―techno utopianism‖ Vs 1. Twitter’s ―censorship‖ policy announced Jan 2012 2. The London riots summer 2011 and state surveillance of social media 3. The Wikileaks takedowns of late 2010 – private intermediary activity
    3. 3. ―Friend‖ : Arab Spring 2011
    4. 4. Social media and the Arab Spring• Doubts? – Evgeney Morozow, Tor
    5. 5. ―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..
    6. 6. UK use of social media?
    7. 7. 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.‖ ??
    8. 8. 1. Social media as surveillance tool Summer riots in London and rest of England 12,000 arrests in London, C 1400 persons prosecuted & sentenced in UK Over 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)
    9. 9. 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 #Ukuncut Face 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‖?
    10. 10. LONDON RIOTS , Summer 2011"Everyone from all sides of London meet up at the heart ofLondon (central) OXFORD CIRCUS!!, Bare SHOPS are gonnaget smashed up so come get some (free stuff!!!) fuck the fedswe will send them back with OUR riot! >:O Dead the ends andcolour war for now so if you see a brother... SALUT! if you seea fed... SHOOT!―Blackberry Message (BBM)
    11. 11. Legal controls over surveillance of SNS posts? ―Of course‖ police can surveille public posts - they’re public!vs Bartow ―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 rights No general US privacy law.. No DP..
    12. 12. 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‖
    13. 13. 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
    14. 14. 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 case Is the info “private‖? S26 (10) ―includes any information relating to his private or family life‖ Investigation? #UKuncut or %―Start a riot‖– not ―Jordan Blackshaw‖
    15. 15. 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)
    16. 16. 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
    17. 17. Anonymous’s grounds for ―censorship‖ "Were against  The First Great Infowar? corporations and government interfering on the internet," Coldblood added. "We believe it should be open and free for everyone. Governments shouldnt try to censor because they dont agree with it‖. Guardian 8 December But DDOS is criminal in most jurisdcitions
    18. 18. 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 takedown But in US government documents are free of copyright ? (cf UK) AWS retain discretion to interpret T of S and probably further discretion.
    19. 19. 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 DDOS Yet in Europe..  ―if you don’t support freedom of expression, why are you selling books?‖
    20. 20. So what did happen to Wikileaks?"Suppose you are the proprietor of an information service. …Theinformation you provide is greatly upsetting to powerful peoplewho would prefer to keep it a secret. You have been chargedwith no crime, much less convicted of one. But one day, youdiscover that all of these payment systems – quiteobviously responding to pressure from the governmentbut citing no actual legal authority – are refusing toaccept money from your customers on your behalf. This, sadly, is not a supposition. It is nearly the precisesituation that WikiLeaks has encountered since late last year..forcing the whistleblowing media operation to suspend allactivity except fundraising in a struggle merely to survive… …ifthis was happening to any traditional media company, it wouldbe a scandal, and the media in general would be screamingabout the threat to free speech it represented. Dan Gilmore, Guardian, Oct 24 2o11
    21. 21. Wikileaks March 2012 ―WikiLeaks: 463 days of banking blockade - no process Assange: 460 days detainment - no charge Manning: 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.‖
    22. 22. 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
    23. 23. 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 harlots prerogative" – power without responsibility.‖
    24. 24. 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.

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