Tumblr's ban on nudity (of adults) seems based on filtering issues which may spread to most other platforms quickly

Late on Monday Eli Rosenberg wrote in the Washington Post about Tumblr’s decision to ban explicit nudity and sex on its platform as of Dec. 17, story here. 

The Post notes that Tumblr had been one of the last repositories of adult content online – not sure that’s true.  On YouTube, for example, there is a lot of “soft core” gay adult video (with age verification) which stops short of full nudity and usually stops when physical intimacy might cross a certain boundary (which in one case appears to suggest shaving).  It is true that you don’t usually find full nudity; it is probably banned (as was a lot of material related to weapons lately).  It's banned on Facebook except in certain medical contexts.  It’s also noteworthy that the closing of gay independent bookstores (because of competition online) means it isn’t as easy to find gay porn in print (as was common from the 70s into the early 2000’s) or video, for hardcopy purchase. In the 1980s, for example, there was a gay owned business called the Crossroads Market on Cedar Springs in Dallas (where I lived then), that had all the nice mainstream art items and crafts, but also had porn, sold as pre-wrapped. (There was also a friendly store cat, Gracie.)   This thrived while the AIDS epidemic, with its local political tensions, crested.

  

Getting back to Tumblr, there is a controversial story (by Lance Whitney) on CNET tracing Tumblr’s decision to its being banned from Apple’s App Store, because some child pornography had allegedly gotten through its filters. 

It must be emphasized that Tumblr's new policy would apply to adult nude content; 

There is a detailed discussion which surprised me as to how good tech companies have gotten in screening for it, before any video or image is posted, without the user noticing any slowdown. It might even apply to the cloud. (It also relates to the question of arrests when tech repairmen at a Best Buy facility in Kentucky discover c.p., which they are not supposed to look for – we’ve covered that before).

It’s true that it is quite easy and quick now to check images and videos against the digital watermarks of known images on the ever-expanding National Center for Missing and Exploited Children database.  This capacity seems to be growing rapidly. But it is probably not perfect;  no filtering is. 

Blogger, in early 2015, had announced it would ban explicit nudity by March 21 of that year, but then relented after a popular revolt.  I suppose that Blogger could have to reconsider this issue given Tumblr’s action (I do not have an account with Tumblr). Blogs with certain content are supposed to be marked “adult”, and certain videos are supposed to invoke logging onto the Google account to prove age 18 (although I wonder about that – I can’t believe that the Science Fair teens of the world (inventing cancer tests and fusion reactors at age 14) or the Parkland activists, at first under 18, don’t have accounts – David Hogg started what looked like a run for the presidency online when he was still “f---” 17 – he wasn’t 18 yet when he gave that passionate speech in front of thousands in DC).

Likewise, Automattic, which is so tied to hosting companies like BlueHost and GoDaddy, will have to look at this now. 

   

Somewhere, as we ponder all this, we have to realize that teens really do mature at very different rates.

But in the meantime we have to watch this sudden issue carefully. 

Incident where Facebook blocks a "journalistic" post about the Charlottesville trial for an offensive meme raises even more questions about lawful content and press credentials

On Sunday, I reported (on my main blog) an incident where Facebook blocked the posting and even access of a Virginia journalist, Hawes Spencer, after he posted a link to his own news story which in turn caused an image of an offensive meme created by defendant James Alex Fields to show directly in the post.

The post was eventually restored, but it leaves a troubling question, of what happens when a news story posts a disturbing image for reporting purposes but there is a risk that illiterate users will misconstrue the purpose of the post and act on it.

In fact, reputable and established news sites won’t reproduce some images, particularly illegal ones, most notably child pornography, even for storytelling purposes.  It would be logical to wonder if, under FOSTA, an image promoting trafficking or prostitution would be illegal to embed this way.

What’s even more troubling is that this incident again begs the question, who gets to call himself a journalist?  Would a different standard be applied to an amateur blog post than to one in an established newspaper? 

Even the recent controversy over Jim Acosta also reminds us of this question:  who is fully accredited as a reporter who stands outside the impulse to take sides?

  

I don’t have press credentials and in generally don’t need them to do what I do.  But I am left wondering if this could change?

Reviewing the 2007 COPA opinion as to "megaphone without gatekeepers"

Let me go back for a moment to the March 22, 2007 decision by Lowell Reid in striking down COPA, the Child Online Protection Act of 1998. 

  

It is noteworthy that the Third Circuit upheld his opinion on July 22, 2008 (Wired story )

On January 21, 2009, the US Supreme Court refused to hear the case (ironically, one day after Obama’s inauguration). Is there any reason to wonder if the current Supreme Court, with its more conservative makeup, would ever want to reconsider it?  It is settled law.

There is a lingering question, in my mind at least, as to whether the First Amendment (in combination with the Fourteenth) automatically incorporates the right to use a megaphone to reach the entire planet without a gatekeeper controlling what gets published, for other considerations, especially such as controlling fakes news or propaganda manipulation.

The actual censorship and de-platforming is the result of the actions of large privately owned (often publicly traded) tech companies, not governments, in conjunction with cultural pressures, which can include international pressure.

Conceivably in the future bodies like ICANN might have to consider this question in a philosophical sense.

One problem is that the capability to broadcast (and bypass the practical economic supervision of the legacy trade publishing industry and literary agents) should be viewed as part of the free speech right since it did not exist in a practical sense until the late 1990s, when the WWW opened up to users after Congress passed Section 230 in 1996 (shielding downstream liability for platforms).  AOL opened up Hometown in October 1996 – I remember that Sunday afternoon well. 

  

Although the COPA opinion does seem to state that Congress cannot provide content-related restrictions on the speech itself (even “hate speech”) once a distribution method has been technologically enabled, the opinion does not preclude the possibility of restrictions on who can have this kind of enabled access based on other factors, like open financial accountability, which might be relevant to stopping fake news. 

One other historical fact is born out -- the "Smallville Problem" -- minors really do vary as to their maturity.  Look at the Parkland H.S. activists and what they have accomplished. 

Accusations against Kavanaugh do show the difficulty of dealing with events in the very distant past

The recent furor over allegations against Brett Kavanaugh, Trump’s appointment to fill Justice Kennedy’s vacancy on the Supreme Court, brings back the question of a statute of limitations.
   

In Maryland, felony charges have no statute of limitations. However, no one has asked Maryland law enforcement to investigate the purported acts in a way normally required by state law.  The fact that Ford was a minor in 1982 would matter, but so was Kavanaugh.

As a practical matter, it sounds very improbable that anyone could prove an act occurred beyond a legal doubt with an incident so old.

Dan Morse and Erin Cox explain in the Washington Post here. 

Susan Collins speech before the Senate on the facts needs to be listened to.

The remarks are important with regard to Kavanaugh on Roe v. Wade, on gay marriage, on privacy, and on the importance of legal precedent in general. 

Nevertheless, accusations from decades ago can be very hard to refute.

People can find themselves served with search warrants after clicking on URL's connected to child pornography

Electronic Frontier Foundation is warning users about the possibility of being subject to a search warrant after even clicking on a URL capable of taking users to child pornography, in a sting.

The EFF Press Release went out on Friday, August 31, here. EFF has submitted an amicus brief, noting that users often don't know what is in links they are clicking on (misspelling, hacks, tiny url's).  

The case is “USA v. Boysk” in Alexandria, VA.  

But the case seems also connected to P2P and to a practice called “rickrolling”.

   

  

Sometimes on YouTube I see softcore gay porn videos offered that might have been filmed overseas with legally underage actors. In one or two cases these videos have quickly been taken down.  

Woodhull Sexual Freedom Summit has forum on FOSTA, recalls history of COPA

I’ll have a more detailed post on the Woodhull Foundation’sSexual Freedom Summit’s forum on FOSTA/SESTA on Saturday, Aug. 4 from Alexandria, VA, watched online.

  

The forum can be watched retrospectively now from the Woodhull Facebook page, here.  I will review it in more detail on a newer Wordpress blog soon.

I wanted to mention that the early part of the presentation gave the history of the Communications Decency Act, the irony of how Section 230 got written and passed as a counterweight, and the repeal of the censorship portions of the CDA by the Supreme Court in 1997. The speakers predicted FOSTA could have a similar course, although it's hard to say how a more conservative Supreme Court will rule.  The panel discounted the idea that the law was really intended to stop trafficking, but instead wanted to target Internet adult content and undermine over individualized free speech -- and had curious, irresistible bipartisan support from populist bases that disregarded logic.  Free speech is simply not as important to millennials (the way we usually argue it) as it has been the previous generation. There is a curious, inconsistent communitarianism.  

   

It also gave a brief history of COPA, the Child Online Protection Act of 1998, and described that it made two trips to the Supreme Court (in 2002 and 2004) before it was finally overturned in a bench trial in Philadelphia, in late 2006 (I attended one day) with ruling in March 2007.

There was mention of Buffnet, an old case that gives some clues as to how platforms must deal with c.p. when Section 230 would not protect them. 

   

Stay tuned.

P2P provides opportunities for law enforcement stings for C.P.

Saturday, at Shenandoah Valley Gay Pride, inside a restaurant called Artful Dodger on Court Square in downtown Harrisonburg, VA, I was seated in a small lounge area where there were some newspapers on a small table.  One small local newspaper was open to a story about a local man who had been arrested for child pornography found on his home computer, about thirty images, simply when an undercover state police officer discovered them through a P2P connection.

I found it interesting that the printed article seemed to have been read and noticed by several people.  That’s a good thing.

People have used P2P for years (I don’t), but it may become even more popular soon as companies promote “the distributed web” and block chain use.

  

However users need to be aware of this.  CP can also be detected in cloud backups and email attachments and image or video uploads by automated screening for hashmarks.  And harshmark technology is rapidly developing.