by Svetlana Mintcheva, NCAC Director of Programs

The New Speech Regulators: PayPal

The Web in 2012 is far from the free speech utopia imagined at its dawn back in the early 90’s. Terms-of-service agreements, capricious moderators and automatic systems limit what we can post on Facebook or YouTube; Amazon purges its virtual shelves of offensive content (cf. CN 115). We may protest these new – and quite insidious – incarnations of censorship but we may also defend the right of privately owned Internet platforms and online bookstores to set the rules of engagement so as to suit the community of their users.

No such ambiguity exists when the censor is a payment processor like PayPal, which exists to provide users with quick, secure and error-free handling of money transfers. Thus, outrage greeted the recent revelation that PayPal had thrown its clout behind a policy that would determine what material the public can access. The company, whose guidelines for vendors ban not only “illegal” and “obscene” material, but also “certain sexually oriented materials,” recently specified what those materials would be and gave an ultimatum to online bookstores (who depend on its services) to immediately purge books containing “bestiality, rape-for-titillation, incest and underage erotica” from their shelves.

How could PayPal possibly justify such a policy, which, de facto, subjects consumers’ fantasies to the payment company’s standard of morality? Clearly, it cannot, and the policy was changed in response to mass protest. From now on, objectionable material will be judged on a case-by-case basis with a focus on images, rather than text.

It is still not clear why PayPal – or any other payment processor  – should be in the business of controlling content at all or determining its legality. Such companies are neither equipped nor required to do that. Let law enforcement tackle illegal material and deal with its distributors. As for everything else, let consumers make their own choices.

Local Laws, Global Communications: Twitter

Social media have increasingly global reach, but laws forbidding certain types of speech remain resolutely local. As a result, one’s expression of political dissent may be legal in the U.S. and France, but not, say, in Egypt. What is an international company to do? If it conforms to local laws and deletes the tweets of dissidents in Egypt it is criticized as violating free speech principles. If it disregards local laws and allows the tweets it may see its whole operation in Egypt closed down and its employees arrested.

In an attempt at compromise, Twitter announced a new policy, according to which it will conform to local laws and block tweets within a specific country upon request from an “authorized entity.” However, users in other countries will still be able to view the tweet. In addition, Twitter introduces a high level of transparency into a process that is usually invisible: the company will post a censorship notice referring to the applicable law whenever a tweet is removed and will make public the removal requests it receives from governments, companies and individuals.

The policy, which is as yet untested, provoked mixed response: Twitter was lauded for making transparent what other social media do quietly and invisibly, it was also criticized for siding with the official censors and doing their work. And important questions remain: Who will be the “authorized entity” entitled to ask for the removal of a message? Who will determine whether a message is, indeed, illegal? How easy will it be to circumvent the geo-specific block? The real effects of the new policy will only emerge once it is implemented.

Protecting Property Rights vs. Free Speech: ACTA

The clash between free speech rights and broad regulations aimed at extending intellectual property protection in an age of digital reproduction came to a climax in the controversy (and eventual demise) of SOPA and PIPA, the twin House and Senate bills seeking to expand protection of intellectual property online, but criticized for threatening free speech.

In the meantime, however, another effort at regulation is still, and much more secretively, making headway: ACTA (Anti-Counterfeiting Trade Agreement), a multilateral agreement that would target counterfeit goods but also copyright infringement on the Internet, has generated widespread public protests in Europe, though it has remained relatively unknown in the United States. The agreement has been signed by the U.S., as well as EU member states and a number of other developed countries.

ACTA has since become notorious for its lack of transparency, evasion of public discussion and Congressional review, as well as its potential threat to civil liberties, including freedom of speech. There is a heated debate around the very constitutionality of an international treaty on copyright signed without Congressional approval: for a law that is both vague and potentially threatening to the free flow of information on the Internet, the need for such a review is glaring.