January 13, 2016 | By Amul Kalia and Aaron Mackey

Companies Should Resist Government Pressure and Stand Up for Free Speech

EFF has been steadfast in its criticism of officials like FBI Director James Comey, who have implored tech companies to provide a backdoor to their customers’ encrypted communications. Now it appears as though the White House would like a backdoor to the First Amendment’s free speech protections by requiring private tech companies to monitor, censor, and automatically report speech on topics related to ISIS and terrorism.

EFF’s concerns come after White House officials held a high-level meeting with technology companies last week asking for help in addressing terrorists’ use of social media. The administration also announced a task force to fight terrorism online.

If the government directly censored the content of online speech about ISIS and other terrorist groups, it would be clearly unconstitutional. Private companies that host communications online, however, are normally not subject to the First Amendment and can set their own rules on the types of content and even viewpoints expressed on their services. Government officials know this and are now both subtly and not-so-subtly pressuring companies to achieve a result that the First Amendment prevents them from doing themselves.

The government’s current tactics threaten the robust free speech on platforms that users have come to expect and could result in arbitrary and excessive removal of lots of legitimate speech. The tactics also suggest the government holds the bizarre view that tech companies are well-suited to identify and deter terrorist speech and threats online, a job that seems more appropriate for numerous federal national security and law enforcement agencies. EFF’s concerns are not idle speculation, as it appears that some companies are caving to the pressure.

Twitter’s Terrorist-related and Hateful Speech Policies will Restrict Legitimate Speech

As EFF explained earlier this week, Twitter’s updated policies regarding prohibited speech include two problematic changes: (1) a new policy that prohibits individuals from “threatening or promoting terrorism” and (2) a new ban on any speech that threatens other people “on the basis of race, ethnicity, national origin, sexual orientation, gender, gender identity, religious affiliation, age, disability, or disease” or incites harm toward others on the same bases.

These vague policies grant Twitter a great deal of discretion to determine what constitutes a terrorist threat or hateful speech, meaning that the policies will likely be applied arbitrarily and potentially discriminate against certain communities. The company also provides no transparency about when and how often it blocks or removes tweets that run afoul of its new policies.

The timing of the changes makes it appear as though Twitter is reacting to calls to prevent ISIS from using the platform to spread its message and recruit members.

EFF hopes that Twitter will modify its policies and that the company’s changes are the exception rather than the rule. It remains to be seen whether other companies will follow suit in light of the U.S. government’s increased pressure to help fight ISIS and other terrorist networks.

Elected Officials are Exerting Pressure on Tech Companies to Censor Speech

While the White House’s recent meeting with leaders of some of the biggest tech companies reportedly took a relatively friendly tone, it was just the latest development in an ongoing effort by the government to force these companies to do exactly what it wants at the expense of their users’ free speech and privacy.

In December, Sen. Dianne Feinstein re-introduced legislation aimed at compelling social media companies to report their users. When Sen. Feinstein and her colleague Sen. Richard Burr first proposed the bill in July 2015, we pointed out that the bill had huge First and Fourth Amendment problems. Specifically, the bill’s language was vague as to what actually constituted “terrorism” that would trigger the mandatory reporting requirement, possibly resulting in companies reporting protected speech under the First Amendment to the authorities. The bill violated the Fourth Amendment by allowing the Government to skirt the warrant requirements for searching the contents of communications by forcing companies to hand over user communications and information as agents of the state. Given those problems, the legislation did not progress and is unlikely to get much traction in 2016.

That said, it’s hard to escape the conclusion that having had her clearly unconstitutional bill go nowhere when it was introduced last summer, Sen. Feinstein is using the bill’s recent reintroduction as leverage to pressure companies to change their policies in the wake of the Paris attacks and the San Bernardino shootings.

Sen. Feinstein has given several interviews demanding that tech companies immediately change their policies and stop the spread of ISIS influence online. Although seeking to limit ISIS’ hateful message is an admirable goal as part of counterterrorism strategy, using private companies to bypass the First Amendment is not the way to do it.

When the government uses its power to coerce private companies into stifling speech, it is not only wrong, it’s unconstitutional. According to the Supreme Court as well as a recent unanimous opinion by the Seventh Circuit Court of Appeals, the First Amendment prohibits public officials from using their office to intimidate private parties, including tech companies, into taking particular actions.

Unfortunately, the threat of Sen. Feinstein’s bill to actively police users’ content seems to be working. If companies are already removing content in violation of their terms, added government pressure provides an incentive to implement an overbroad and censorious regime that infringes on users’ free speech.

Tech Companies are Not Created to Investigate Terrorism

Moving forward, EFF hopes that tech companies will resist efforts to become agents of the government. The promise of free speech on social networks is in part what allowed these companies to become the global leaders that they are, and we hope they’ll remember that.

Moreover, companies should resist government pressure because they are incredibly bad at policing their users’ content. Rather than enacting rational policies, they tend to over-censor. For instance, as part of Facebook’s efforts to remove content about the terrorist group ISIS on its network, the company also locked two women out of their account for having the name “Isis,” one of whom was already being bullied because of her name. Given these problems and companies’ arbitrary removal of user content in a number of other contexts, finding and investigating potential threats to our country should be left in the hands of the professionals.

Some even argue that if these companies remove or over-report content, it will harm legitimate intelligence gathering and terrorism investigations. A former undercover FBI agent quoted by The Intercept explains how over-reporting “creates this tidal wave of information… cast[s] suspicion on a lot of people unnecessarily, which is then impossible to remove.” Thus, the government’s call for greater reporting may actually be counterproductive to identifying actual terrorists online.

As the government continues to pressure tech companies, EFF stands ready to support those that resist, and we hope that they will publicly stand up for their users’ free speech rights.


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