Duck and cover: LJ and incest purging

[green_amber]

Background: I joined this community as an internet lawyer/academic, also from general sf fandom - I am neither a slash fan nor a fiction writer. Also I'm a UK lawyer, not a US lawyer. So I imagine I'm an oddity here. But I find this whole storm weird, just as I did Nipplegate. LJ is a private site. It is not a state nor a common carrier nor a "public broadcaster" with positive obligations as to content, like the BBC in the UK. It is basically a business, one which rather oddly and sweetly does not seem to try to make maximum profits when it could (charge everyone, or show everyone ads.) No one would argue that Wallmart couldn't decide whether or not to stock Hello Kitty vibrators, say, even if they were (as is likely) perfectly legal. It's Wallmart's store. And if they think those vibrators are a bit dodgy, either legally or in terms of alienating or annoying certain customers, so be it. If they were stocking stuff they thought might or might not be legal, there isn't a lawyer in the world who wouldn't advise them to dump that stuff; and that's WALMART - who have millions of dollars and lawyers to fight prosecutions or civil suits.

As for the particular bit of the storm over 6A changing T & C in mid stream - I've looked at those terms and you all clearly (for legal values of "clearly":-) agreed on joining that LJ could change the terms at any time:
"cl XIII REVISIONS
LiveJournal may at any time revise these Terms of Service by updating this posting. By using this Site, you agree to be bound by any such revisions and should therefore periodically visit this page to determine the then-current Terms of Service to which you are bound."


6Apart, I strongly imagine, have absolutely no interest in becoming a style and content dictator, even though they're quite entitled to be one, as it's their site. They're still mostly leftie california volunteers on staff after all. And their business model such as it is is clearly based on not alienating large groups of clientele. But faced with large amounts of risk, they're simply covering their back, which every lawyer in the world, including me, would strongly advise them to do, especially given they mainly provide the service for free.

The alternative is the likelihood of them at some point being sued or prosecuted out of existence just like Napster and Grokster. Would you rather have a world with LJ in it, albeit mildly policing the most extreme and likely to be dodgy of its boundaries, or a world with no LJ?

LJ isn't a "place" in cyberspace. It's a publisher and as much subject to laws and economic pressure as you and me. And whatever (some!) Americans think, the First Amendment (and the CDA and the DMCA) is not a global law and will not exculpate LJers (and 6A as the distributor and publisher) in every court in the world. LJ may currently be scared of a possible case in the US but they are also probably far far more scared of a future case in the UK or Saudi Arabia, or anywhere else they have readers, and, perhaps, assets (or plan to visit at some point).

Why do you people feel (or do you not? but this is the vibe I get..) that LJ has a moral duty to defend you over and above that of a normal business? Of, say, AOL? or Facebook? Isn't it good enough that they provide a platform for free and make efforts, it seems, not to "censor" (ie reduce legal risk) until someone with an agenda,like WFI, makes waves too big to ignore?

Alternately, would you pay say $10 a head, over any usual subscription fee, to provide LJ with a legal fighting fund? that's one way forward.

BTW I am organising a funky workshop on law and popular culture in London in SEptember - http://www.law.ed.ac.uk/ahrc/gikii/ - if anyone here would like to put in an abstract (real lawyers only, please) please do:-)

Comments

[vicarage.livejournal.com]

I could understand why they might suspend accounts that breach their rules, but I'd worry more about their instant deletion of them, especially as 6A's tools for backup and export of content are so poor.

I'd be livid if Gmail deleted all my mail because it happened to have dodgy words in some messages.

Warriors for Innocence do rather sound like Thought Police too.

[surliminal.livejournal.com]

I know it isn't nice, but it really comes down to a) what powers a site gives it itself in its T and C, and b) what the law demands. In many countries inc the UK,the law says that if there is notice given to a site like KLJ that it is hosting illegal materil, then if they do not take it down promptly (ie delete, or block access) they become liable in criminal law - not fun. The big question is if it IS illegal - how is LJ to know, especially when the law is vague? But a wise site will err on the side of caution:-)becasue you can exculpate yourelf from breach of contract by good choice of T and Cs (see above) while you cannot contract out of criminal liability.

It seems to me LJ are actually being pretty good in discussing this stuff, taking a limited risk (ie leaving many fairly dodgy communities alone) and getting, on the whole, no money back for it.

I didn't mean to post this here - I'll put it on fandom_lawyers - i was going to delete it here but now not sure what to do?

[vicarage.livejournal.com]

I think your voice of sanity is a nice contrast to Chris's sky-is-falling one

[surliminal.livejournal.com]

I admit I do get tired of the apocalyptic approach every time LJ/6A do absolutely normal things for an Internet host site, and an unpaid one at that.

[del-c.livejournal.com]

I don't know. On the scale of bizarre irrational YOU'RE NOT THE BOSS OF ME! entitlement rages, this still doesn't come close to Wiki-hate.

[moral-vacuum.livejournal.com]

It's fascinating (I've had a poke round the history now), so please do keep it.

[moral-vacuum.livejournal.com]

1) background and 2) links, please.

[surliminal.livejournal.com]

shit sorry,this was meant to go to a fandom lawyers community = check it out there..

[pigeonhed.livejournal.com]

But is there a lawyer anywhere who could successfully claim that a discussion group for incest survivors was in any way potentially illegal?
Is there a lawyer who could argue that books which include mention of incest are illegal without arguing that The Bible is illegal?

My post was meant to show that not only is 6A's response a panic response but it is a particularly clumsy response which is as likely to bring as much trouble as it evades.

[surliminal.livejournal.com]

It's not a panic response. (I haven't seen your post yet BTW.)

You want LJ to read through every post and every community looking for potentially illegal material as opposed to invigorating smut? Who's going to do it? You? And your friends? And their friends? I doubt it. How many milion lines of text are there on LJ? How many people does LJ currently emply who ahev both time and qualifications to do this work? remeber hardly any of them (if any) will be trained in the fine disticntions of obscenity law in multiple US states (let's leave out the law of the UK, Iraq and Russia for now..)

So what's the alternative assuming you the reader don't want to bear that cost (ie pay an awful lot)? Without resources for 100s of monitoring editors their only sensible line is to remove or delete material headed with what are likely pointers to illegal material. Ot swallow unlimited risk of being sued or prosecuted - something no sensible business would do.

Also do you really *want* LJ reading your stuff to assess if it's smut or pedo? Wouldn't you rather they just took a "bright line" approach?

Incidentally this is nothing new - Google does this using automated filters (is your Google on safe Searxch? most people's are as it's the default) and so do many website hosts and ISPs.

[pigeonhed.livejournal.com]

I take your point but this is a heavy handed and clumsy response to a threat that comes from an unaccredited source, an organisation apparently misrepresenting itself as Law Enforcement backed. It is a response which has no recourse to appeal, thus preventing the genuine abuse help sites from demonstrating their validity.
And apparently its main impact has been to drive the real paedophiles further underground whilst pissing off the good people.

[surliminal.livejournal.com]

ANY legal attack drives pedophiles underground - it isn't a reason not to do it.

And I'm sorry, how do we tell the "good guys" from the bad guys? Right now you may say, oh yes these are fandom communities, not paedophiles but..I've just written this elsewhere..

"..I myself think suggesting that courts (say) decide that it's ok for some people to have child porn cos they're only "fans" while others are "pedos" is a hiding to nothing - every paedophile will of course claim to be a fan of Harry Potter slash :-)."

[pigeonhed.livejournal.com]

I'm not think along the lines of slashfan/pedo. I am concerned that for example an Incest Support Group will be blindly deleted because it says 'Incest' ooh that's a bad thing and 'Support' ooh that means they encourage it.

So if 6A had come out and said, 'look, we're concerned about the legality of some of these sites so we would like you to remove anything illegal before we are forced to, and if you can demonstrate a valid reason for discussing these matters on your site we will allow you to remain,' then many of those up in arms would appreciate that 6A had covered their backs in a reasonable manner.

[surliminal.livejournal.com]

Given that it is uneconomic for LJ to control risk any way except by searching jnks by interests or keywords, what is to stop a community for incest survivors that is deleted (say) simply saying, hang on, please have a look and put us back if you agree we're legal? communication would be more effective than organising boycotts etc.

[pigeonhed.livejournal.com]

I may be wrong but my understanding is that as of this afternoon LJ had declined to respond to such requests and have apparently informed deleted users that they have no right of appeal. Nor has there been notice served during which time potentially offensive material could be removed. As you say, communication would be more effective.

You said that LJ is entitled to change its TOS at any time, but this is not what they have done in this case. The TOS as published appear unchanged BUT the abuse team have been given instructions which explicitly contradict the TOS. Surely this is legally dubious ground for 6A? At the very least it is evidence that this action has been rushed and not thoroughly planned first, ie a panic reaction.

[surliminal.livejournal.com]

OK I give in - we're on to execution not legality now and you def know more about that than me! :-)

[pigeonhed.livejournal.com]

Well for me it isn't really a legal issue as a matter of heavyhandedness and panic. I understand why other people want to question the legal side of it, and I think that in some ways the clumsy nature of this reaction has possibly raised legal grey areas that 6A haven't anticipated.

[andrewducker]

I'm with you on that. I don't care about the legality - I care about the way it's been done. When "the powers that be" start clamping down without even a statement clarifying the scope of their clamping, everyone worries. If LJ had put up a post saying "We're getting rid of anything with a hint of child molestation. If we get you by accident then apply at this URL to be reinstated." then people would be a lot happier...

[rozk.livejournal.com]

I have got some of this at second-hand, but as I understand it, the problem is that LJ originally intended to have a sensible appeals procedure, but then their lawyers got worried that, if they allowed appeals, or allowed people to access their journals to remove offensive material, or copy stuff for their records, LJ might subsequently be liable for knowingly allowing someone to conceal evidence of a crime. So e.g. the incest survivors have to be penalized because they got caught up in a mass sweep, and some actual criminals might abuse the appeal procedure.

I take your overall point, but LJ have allowed themselves to be paniced by a few quite unpleasant people - the sort of people who are as obsessed with illegal immigrants as they are with paedophiles and who, it seems, deliberately infect all visitors to their site with malware. (I had no spyware when I checked this morning and 62 items after checking out Warriors for Innocence; other people have reported the same).

[surliminal.livejournal.com]

That's very interesting.

Some heartening news from this side of the pond though - when I did my survey of UK ISPs (yes this is all very coals to Newcastle for me I'm afarid) I found that almost of all of them rather than simply taking down on notice, actually gave the subscriber a chance to remove the offending stuff first.

I don't think anyone thinks WFI are other than very dodgy.

[blue-condition.livejournal.com]

I'm on record in many places, over many years, as believing that 'freedom' and 'rights' don't exist on the Internet - at least on any part of it that depends on someone else's systems or links to publish your thoughts.

You are always playing with someone else's ball, and they'll take it away when it suits them.

There are several myths of freedom on the net - in the Elder Days (pre-1990 say) there was a sort of consensual illusion of freedom - but most people had net access by virtue of work or study and recreational use of it it was a privilege. And back then there was a kind of consensus that there were things you didn't say because if you did the paymasters might start looking under rocks; a real "don't ask, don't tell" culture.

The tenner-a-month crowd back in the early dialup days started to think they had 'rights', particularly 'rights' to libel people on Usenet. It got worse when web space became available - every halfwit, flamer, and illiterate jerk felt they had a right to spread their conceptual faeces all over the net with no consequences.

Internet freedom is just like internet privacy - a myth. Live with it. "They" pwn j00r a55.

[drdoug.livejournal.com]

"They" pwn j00r a55.

I like to imagine I'm entitled to a long-term lease on it, though. Or at least a non-exclusive usage license.

[surliminal.livejournal.com]

I like that :-)

I am somewheer between the "I have a constutional right to write smut about under age teenagers anywhere I please!" people and the "YOu have no rights here, get over it" people :) Dull, amn't I..

[blue-condition.livejournal.com]

"You have no rights here, get over it" will prevail, if only because bastardy can thrive. ;)

[surliminal.livejournal.com]

Well, y'know. there are human rights and DP law and things like that. It takes a lot to get nonUSAns to litigate though..

[blue-condition.livejournal.com]

Yep. There are other laws, but on the Internet very few people can hear you scream. ;P

The only significant takedown where I sympathised with the victims was anon.penet.fi being stomped by the Scientologists. And that's mainly because the Scientologists need a thoroughly good kicking.

[drdoug.livejournal.com]

Why do you people feel (or do you not? but this is the vibe I get..) that LJ has a moral duty to defend you over and above that of a normal business?

I suspect it's a similar effect to the one that makes people take serious action about Israeli human rights abuses but generally not mention Saudi Arabian ones. There's a natural tendency to hold people who are closer to your views to higher standards than ones who are further away.

There's a sample thing going on here too - you're seeing an outcry here on LJ about what LJ are up to. You won't hear much at all on here about Facebook's (doubtless) numerous infelicities - those'll be done to death on Facebook. And the particularly vociferously objecting folk appear to me to be largely of the geeky/fannish persuasion. It's surely not remotely surprising that a bunch of geeks are absurdly touchy about anything that looks like censorship?

Geeks want sites to react like Digg did on its second pass at the question of links to the AACS/09 F9 issue - they'd rather they went down fighting than Do The Wrong Thing. Which - one must admit - has a certain moral consistency to it.

And yes, I bet such people would chip in for a fighting fund - tho' it'd need to be fairly specific and reactive rather than a blanket insurance-type charge on the off chance. (Which would make some business sense too: it would be tactically inadvisable IMO to leave a large sum of money around visibly for the purpose of dealing with litigation.)

[surliminal.livejournal.com]

You realise of course that "You people" was not aimed at my usual FL :-)

Otherwise yeh, the fighting fund was a genuine suggestion but yeh I take the point about honeypot litigation. I wonder if insurance could be taken which would only pay for litigation costs not damages?

[surliminal.livejournal.com]

also

has a certain moral consistency to it.

Not entirely? If all the goody sites go down fighting eg we'll all have no alternative but to be on MY Spaz - zut alors!

[drdoug.livejournal.com]

Oh, surely that's not much of an argument to a purist? If we allow the goody sites to undermine themselves by undoing what's good about them then we'd have no real alternative either.

(Not that I entirely take that position myself - I'm more of a pragmatist than a purist - but I can appreciate that perspective.)

[surliminal.livejournal.com]

yeh I get it but it is not me - I'd rather be a live louse fighting another day than a dead lion (or even a live lion!)

[abrinsky.livejournal.com]

Ah - sense on the interwebs, what a pleasant change. People do forget that this is part of the real world and hence real world issues of commerce, law etc, do apply.

[steer.livejournal.com]

It's not a question of what is legal it's a question of what is moral/ethical. To take your Walmart example, let us imagine that they decided not to stock extra thick condoms because they felt that it promoted anal sex which they felt was immoral. They would have a legal right to do so. Whether it was moral or not is another issue.