This Week in Congress Update: Markups on 702 and 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.


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
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
People For the American Way
Restore The Fourth
The Constitution Project
Union for Reform Judaism
Win Without War
Yemen Peace Project

Marcy Wheeler exposes another problem with the underlying bill and the manager’s 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 manger’s 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 Manager’s 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 Manager’s 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 Manager’s 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 230’s 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 Manager’s Amendment does not resolve these issues. It keeps SESTA’s 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 heckler’s 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.


Access Now
Campaign for Liberty
Center for Democracy & Technology
Citizen Outreach
Committee for Justice
Demand Progress Action
Electronic Frontier Foundation
National Coalition Against Censorship
New America’s 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.

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