EFF has asked a federal court to rule in its favor in a lawsuit we filed against an Australian company that sought to use foreign law to censor us from expressing our opinion about its patent. While the company, Global Equity Management (SA) Pty Ltd (GEMSA,) knows its way around U.S. courts—having filed dozens of lawsuits against big tech companies claiming patent infringement—it has failed to respond to ours. Today we asked for a default judgment, which if granted means we win the case.
It all started when GEMSA’s patent litigation was featured in our June 2016 blog series “Stupid Patent of the Month.” The company wrote to EFF accusing us of “false and malicious slander.” It subsequently filed a lawsuit and obtained an injunction from a South Australia court ordering EFF to take down the blog post and blocking us from ever talking about any of its intellectual property.
We have not removed the post. The South Australian injunction can’t be enforced in the U.S. under a 2010 federal law that took aim against “libel tourism,” a practice by which plaintiffs—often billionaires, celebrities, or oligarchs—sued U.S. writers and academics in countries like England where it was easier to win a defamation case.
The Securing the Protection of Our Enduring and Established Constitutional Heritage Act (SPEECH Act) says foreign orders aren’t enforceable in the United States unless they are consistent with the free speech protections provided by the U.S. and state constitutions, as well as state law. Our lawsuit, filed in U.S. District Court, Northern District of California, maintains that GEMSA’s injunction, which seeks to silence expression of an opinion, would never survive scrutiny under the First Amendment in the United States and should therefore be declared unenforceable. We stood ready to defend our right to express constitutionally protected speech.
GEMSA, which has three pending patent lawsuits in in the Northern District of California, had until May 23 to respond to our case. That day came and went without a word. We can’t speculate as to why GEMSA hasn’t responded. To get a default judgment, we need to show that not only has GEMSA failed to answer our claims but also, regarding our claim that the South Australia injunction is unenforceable in the U.S., the law is on our side.
We believe that we should prevail. The law does not allow companies or individuals to make an end run around the First Amendment by finding a judge in another country to sign an injunction that censors speech in the U.S. The law the Australian court applied to grant the injunction didn’t provide as much protection for EFF’s speech as American law, which means it’s unenforceable under the SPEECH Act. Additionally, the injunction is unconstitutional under American law as it prohibits all future speech by EFF about any of GEMSA’s patents. Such prohibitions are also known as prior restraints, and are allowed only in the rarest of circumstances, none of which apply here.
Our laws also don’t allow plaintiffs to be left under a cloud of uncertainty as to their ability to speak publicly about something as important as patent litigation and reform. The Australian injunction states that failure to comply could result in the seizure of EFF’s assets and prison time for its officers. GEMSA attorneys have threatened to take the Australian injunction to American search engine companies to deindex the blog post, making the post harder to find online.
The court should set the record straight and grant our request for a default judgment. Our laws call for no less.
The detention of a group of human rights defenders in Turkey for daring to learn about digital security and encryption continued last week with a brief appearance of the accused in an Istanbul court. Six were returned to jail, and four released on bail. In an additionally absurd twist, the four released activists were named in new detention orders on Friday, and are now being re-arrested.
Among those currently being held in jail are Ali Gharavi and Peter Steudtner, digital security trainers from Sweden and Germany, who had traveled to Turkey to provide online privacy advice for a conference of human rights defenders. The meeting was raided by Turkish police on July 5, and appears to be the sole basis for the prosecution.
The court charged Gharavi and Steudtner with "committing crimes in the name of a terrorist organization without being a member." Their co-defendants include Idil Eser, the Director of Amnesty Turkey, Veli Acu and Günal Kurşun of the Human Rights Agenda Association, and Özlem Dalkıran of the Helsinki Citizens’ Assembly. Four others were released on bail, but new detention orders against them were announced on Friday, with two re-arrested over the weekend.
When asked about the arrests, Turkey's President Recep Tayipp Erdogan said that the group had "gathered for a meeting which was a continuation of July 15," referencing the date of the attempted coup against him in 2016. The government has used the coup as a justification for the subsequent mass arrests of over 50,000 people including journalists, academics, judges and, most recently, technologists.
Strong digital security helps everyone; learning about encryption is not a sign of criminal activity. The Turkish authorities and media have continued, nonetheless, to tie the use of secure communications tools to the coup. A report in the conservative Islamist paper Yeni Akit declared that the detainees had secret government documents, and used the mobile communications app "ByLock" to stay in contact with groups connected to the coup. ByLock is a known insecure app that is largely unknown outside of Turkey and has been widely criticised by digital security experts. It is profoundly unlikely that Gharavi or Steudtner used it. Use of ByLock was also the sole reason the Turkish police gave for the arrest of Amnesty's Chair, Taner Kiliç, last month.
The condemnation of the Turkish courts' actions has been swift. U.S. State Department spokesperson Heather Nauert said the U.S. "strongly condemns the arrest of six respected human rights activists and calls for their immediate release," and urged Turkey to drop the charges, which it said undermine the country's rule of law.
Eliot Engel, the U.S. House of Representatives' ranking member on the Foreign Affairs committee, said that "The arrest of these brave men and women is unacceptable, and the latest example of the erosion of democracy in Turkey... I call on Turkish authorities to release Idil Eser and her fellow activists without delay or condition, and Secretary Tillerson must make this a top priority in his engagement with Turkey’s government."
Sweden's Foreign Minister, Margot Wallstrom has called for the release of Gharavi, who is a Swedish national. "It is our understanding that Gharavi was in Turkey to participate in a peaceful seminar about freedom of the internet and we have urged Turkey to quickly clarify the grounds for the accusations against him," she said in a statement.
Germany, Steudtner's home country, has taken an even more forceful line. "We are strongly convinced that this arrest is absolutely unjustified," German Chancellor Angela Merkel said, according to the DPA news agency. Germany's Foreign Minister Sigmar Gabriel cut short a vacation to deal with the case, and summoned the Turkish Ambassador in Berlin, who was told "without diplomatic pleasantries" of Germany's expectation that Steudtner and his colleagues should be released immediately. Gabriel later warned that "the case of Peter Steudtner shows that German citizens are no longer safe from arbitrary arrests," and suggested that his continuing detention will lead to a "re-orienting" of German's policy toward Turkey.
The baseless prosecution of these human rights defenders, including Peter and Ali, two innocent technologists from allies of Turkey, highlights the decline of Turkey's democratic institutions. We continue to urge the Turkish authorities to listen to a chorus of countries and international organizations, and to free all ten victims of this profound injustice immediately.
Sixteen countries from Asia-Pacific are meeting in Hyderabad for the 19th round of the Regional Comprehensive Economic Partnership (RCEP) which takes place in India from 18-28 July, 2017. EFF is participating to advocate for improved transparency and openness in the negotiations, and to express our concerns about possible new rules on intellectual property and ecommerce that some countries are proposing for the agreement.
RCEP is a free trade agreement (FTA) aimed at broadening regional economic integration and liberalising trade and investment between the 10 ASEAN economies and its trading partners including Australia, China, India, Japan, Korea, and New Zealand. The total population covered by RCEP exceeds 3 billion, and with the combined GDP of about US$ 17 trillion accounting for about 40% of the world’s trade makes RCEP the biggest mega-regional trade agreement that is under negotiation.
The idea of RCEP was first introduced at an ASEAN Summit in 2011 and formal negotiations were launched in 2012. Over the last five years, the scope of the agreement has grown to include commitments for trade in goods and services, boosting economic and technical cooperation, and intellectual property. Worryingly, discussions on ecommerce issues including rules on software, data flows, and regulatory standards that have not been addressed in other trade mechanisms are also being included in the RCEP negotiations.
Reports suggest that Japan, Australia, South Korea, and New Zealand have been pushing for binding commitments from the RCEP members on ecommerce. A separate working group on ecommerce (WGEC) has been established with the aim of formalising a chapter on ecommerce in the final agreement. The agreement and the issues being negotiated are being kept confidential, however a few chapters drafts have been leaked including the ‘Terms of Reference (TOR)’ for the WGEC. WGEC members are hopeful of concluding the deal by year end which would include ‘liberalisation commitments’ and norms for ecommerce including provisions on investment, dispute settlement and competition.
The proposed elements for the TOR (for negotiations) are understood to include domestic regulatory frameworks for market access, customs duties on electronic transmission, non-discriminatory treatment of digital products, paperless trading, electronic signatures, digital certificates and online consumer protection issues such as storage and transfer of personal data protection and spam.
Controversial issues such as prohibition on requirements concerning the location of computing facilities and allowing cross-border transfer of information by electronic means are also expected to be included within the scope of the chapter. Further, countries including Australia and Japan have proposed making a permanent commitment to zero duties on digital transmissions, and prohibiting rules requiring on compulsory disclosure of source codes.
Given the secrecy of the negotiations, the lack of opportunities for public input in the process, and the complexity of issues involved, EFF convened an expert panel on ecommerce issues in the RCEP negotiations in Hyderabad. The public meeting was organised in partnership with the National Institute of Public Finance and Policy (NIPFP) and the National Law University of Law, Hyderabad. Speakers included Professor Ajay Shah (NIPFP), Parminder Jeet Singh (ItforChange) and Professor VC Vivekananda (Bennett University).
Panelists raised several issues including ensuring non-discriminatory treatment of digital products transmitted electronically and the need for guaranteeing that these products will not face government-sanctioned discrimination based on the nationality or territory in which the product is produced. Security risks associated with the prohibition of source code disclosure, and the costs of imposing measures that restrict cross-border data flows and or require the use or installation of local computing facilities were also raised by panelists.
The event was a success with negotiators from nine countries including Vietnam, Japan, Australia, New Zealand, Laos, Cambodia, South Korea and Thailand showing up for the meeting. Given that access for users at such negotiations is restricted the large number of negotiators showing interest was very encouraging. Understandably, the negotiators did not ask questions or participate in the discussions, however their interest in the issues is evident in WGEC members turning up for the panel. This is definitely an improvement on the previous negotiations where there has been limited participation from negotiators at similar events. We also received feedback that the WGEC would like to see specific issues being discussed in-depth including positive commitments that could be included.
EFF is maintaining a cautious and critical stance on the inclusion of e-commerce rules in RCEP, and the inclusion of similar rules in NAFTA, simultaneously being negotiated on the other side of the world. While it is possible to deal with e-commerce in a trade agreement in a balanced way that respects users’ rights, this is made unnecessarily difficult when those rules are being negotiated in secret.Nonetheless, until a better way of engaging with negotiators exists, EFF will continue to provide our input through unofficial side events and bilateral meetings, because this is the best way that we can stand up for your rights in what remains an unfair and secretive process
The failed Trans-Pacific Partnership (TPP) was a lesson in what happens when trade agreements are negotiated in secret. Powerful corporations can lobby for dangerous, restrictive measures, and the public can't effectively bring balance to the process. Now, some members of Congress are seeking to make sure that future trade agreements, such as the renegotiated version of NAFTA, are no longer written behind closed doors. We urge you to write your representative and ask them to demand transparency in trade.
Representative Debbie Dingell (D-MI) has today introduced the Promoting Transparency in Trade Act (H.R. 3339) [PDF], with co-sponsorship by Representatives Laura DeLauro (D-CT), Tim Ryan (D-OH), Marcy Kaptur (D-OH), Jamie Raskin (D-MD), Keith Ellison (D-MI), Raúl Grijalva (D-AZ), John Conyers (D-MI), Jan Schakowsky (D-IL), Louise Slaughter (D-NY), Mark DeSaulnier (D-CA), Dan Lipinski (D-IL), Chellie Pingree (D-ME), Brad Sherman (D-CA), Jim McGovern (D-MA), Rick Nolan (D-MN), and Mark Pocan (D-WI). Representative Dingell describes the bill as follows:
The Promoting Transparency in Trade Act would require the U.S. Trade Representative (USTR) to publicly release the proposed text of trade deals prior to each negotiating round and publish the considered text at the conclusion of each round. This will help bring clarity to a process that is currently off limits to the American people. Actively releasing the text of trade proposals will ensure that the American public will be able to see what is being negotiated and who is advocating on behalf of policies that impact their lives and economic well-being.
A previous version of the Promoting Transparency in Trade Act was introduced into the previous session of Congress, but died in committee. Compared with that version, this latest bill is an improvement because it requires the publication of consolidated draft texts of trade agreements after each round of negotiations, which the previous bill did not.
Another of our recommendations that is reflected in the bill is to require the appointment of an independent Transparency Officer to the USTR. Currently, the Transparency Officer is the USTR's own General Counsel, which creates an conflict of interest between the incumbent's duty to defend the office's current transparency practices, and his or her duties to the public to reform those practices. An independent officer would be far more effective at pushing necessary reforms at the office.
The Promoting Transparency in Trade Act faces challenging odds to make it through Congress. Its next step towards passage into law will be its referral to the House Committee on Ways and Means, and probably its Subcommittee on Trade, which will decide whether the bill will be sent to the House of Representatives for a vote. The Senate will also have to vote on the bill before it becomes law. The more support that we can build for the bill now, the better its chances for surviving this perilous process.
Passage of this bill may be the best opportunity that we'll have to avoid a repetition of the closed, secretive process that led to the TPP. With the renegotiation of NAFTA commencing with the first official round of meetings in Washington, D.C. next month, it's urgent that these transparency reforms be adopted soon. You can help by writing to your representative in Congress and asking them to support the bill in committee.
IFLA urges W3C to consider the impact that EME will have on the work of libraries and archives:
While recognising both the potential for technological protection measures to hinder infringing uses, as well as the additional simplicity offered by this solution, IFLA is concerned that it will become easier to apply such measures to digital content without also making it easier for libraries and their users to remove measures that prevent legitimate uses of works.
Technological protection measures […] do not always stop at preventing illicit activities, and can often serve to stop libraries and their users from making fair uses of works. This can affect activities such as preservation, or inter-library document supply. To make it easier to apply TPMs, regardless of the nature of activities they are preventing, is to risk unbalancing copyright itself.
IFLA’s concerns are an excellent example of the dangers of digital locks (sometimes referred to as digital rights management or simply DRM): under the U.S. Digital Millennium Copyright Act (DMCA) and similar copyright laws in many other countries, it’s illegal to circumvent those locks or to provide others with the means of doing so. That provision puts librarians in legal danger when they come across DRM in the course of their work—not to mention educators, historians, security researchers, journalists, and any number of other people who work with copyrighted material in completely lawful ways.
Of course, as IFLA’s statement notes, W3C doesn’t have the authority to change copyright law, but it should consider the implications of copyright law in its policy decisions: “While clearly it may not be in the purview of the W3C to change the laws and regulations regulating copyright around the world, they must take account of the implications of their decisions on the rights of the users of copyright works.”
Three European Parliament Committees met during the week of July 10, to give their input on the European Commission's proposal for a new Directive on copyright in the Digital Single Market. We previewed those meetings last week, expressing our hope that they would not adopt the Commission's harmful proposals. The meetings did not go well.
All of the compromise amendments to the Directive proposed by the Committee on Culture and Education (CULT) that we previously catalogued were accepted in a vote of that committee, including the upload filtering mechanism, the link tax, the unwaivable right for artists, and the new tax on search engines that index images. Throwing gasoline on the dumpster fire of the upload filtering proposal, CULT would like to see cloud storage services added to the online platforms that are required to filter user uploads. As for the link tax, they have offered up a non-commercial personal use exemption as a sop to the measure's critics, though it is hard to imagine how this would soften the measure in practice, since almost all news aggregation services are commercially supported.
The meeting of the Industry, Research and Energy (ITRE) Committee held in the same week didn't go much better than that of the CULT Committee. The good news, if we can call it that, is that they softened the upload filtering proposal a little. The ITRE language no longer explicitly refers to content recognition technologies as a measure to be agreed between copyright holders and platforms that host "significant amounts" (the Commission proposal had said "large amounts") of copyright protected works uploaded by users. On the other hand, such measures aren't ruled out, either; so the change is a minor one at best.
There is no similar saving grace in the ITRE's treatment of the link tax. Oddly for a committee dedicated to research, it proposed amendments to the link tax that would make life considerably harder for researchers, by extending the tax to become payable not only on snippets from news publications but also those taken from academic journals, and whether those publications are online or offline. The extension of the link tax to journals came by way of a single word amendment to recital 33 [PDF]:
Periodical publications which are published for scientific or academic purposes, such as scientific journals, should n̶o̶t̶ also be covered by the protection granted to press publications under this Directive.
This deceptively small change would open up a whole new class of works for which publishers could demand payment for the use of small snippets, apparently including works that the author had released under an open access license (since it's the publisher, not the author, that is the beneficiary of the new link tax).
The JURI Committee also met during the week, although it did not vote on any amendments. Even so, the statements and discussions of the participants at this meeting are just as important as the votes of the other committees, given JURI's leadership of the dossier. The meeting (a recording of which is available online) was chaired by German MEP Axel Voss, who has recently replaced the previous chair Theresa Comodini as rapporteur. Whereas MEP Comodini's report for the committee had been praised for its balance, Voss has taken a much more hardline approach. Addressing him as Chair, Pirate Party MEP Julia Reda stated during the meeting:
I have never seen a Directive proposal from the Commission that has been met with such unanimous criticism from academia. Europe's leading IP law faculties have stated in an open letter, and I quote, "There is independent scientific consensus that Articles 11 and 13 cannot be allowed to stand," and that the proposal for a neighboring right is "unnecessary, undesirable, and unlikely to achieve anything other than adding to complexity and cost".
The developments in the CULT, ITRE and JURI committees last week were disappointing, but they do not determine the outcome of this battle. More decisive will be the votes of the Civil Liberties, Justice and Home Affairs (LIBE) Committee in September, followed by negotiations around the principal report in the JURI Committee and its final vote on October 10. Either way, by year's end we will know whether European politicians have been utterly captured by their powerful publishing lobby, or whether the European Parliament still effectively represents the voices of ordinary European citizens.
In a disappointing opinion issued on Monday, the Ninth Circuit upheld the national security letter (NSL) statute against a First Amendment challenge brought by EFF on behalf of our clients CREDO Mobile and Cloudflare. We applaud our clients’ courage as part of a years-long court battle, conducted largely under seal and in secret.
We strongly disagree with the opinion and are weighing how to proceed in the case. Even though this ruling is disappointing, together EFF and our clients achieved a great deal over the past six years. The lawsuit spurred Congress to amend the law, and our advocacy related to the case caused leading tech companies to also challenge NSLs. Along the way, the government went from fighting to keep every single NSL gag order in place to the point where many have been lifted, some in whole and many in part. That includes this case, of course, where we can now proudly tell the namesof our clients to the world.
No matter what happens with these particular lawsuits, we are not done fighting unconstitutional use of NSLs and similar laws.
Making sense of a disappointing ruling
National security letters are a kind of subpoena issued by the FBI to communications service providers like our clients to force them to turn over customer records. NSLs nearly always contain gag orders preventing recipients from telling anyone about these surveillance requests, all without any mandatory court oversight. As a result, the Internet and communications companies that we all trust with our most sensitive information cannot be truthful with their customers and the public about the scope of government surveillance.
NSL gags are perfect examples of “prior restraints,” government orders prohibiting speech rather than punishing it after the fact. The First Amendment embodies the Founders’ strong distrust of prior restraints as powerful censorship tools, and the Supreme Court has repeatedly said they are presumptively unconstitutional unless they meet the “most exacting” judicial scrutiny. Similarly, because NSLs prevent recipients from talking about the FBI’s request for customer data, they are content-based restrictions on speech, which are subject to strict scrutiny. So NSL gags ought to be put to the strictest of First Amendment tests.
Unfortunately, the Ninth Circuit questioned whether NSLs are prior restraints at all. And although the court did acknowledge they are separately content-based restrictions on speech, it said the law is narrowly tailored even though it plainly allows censorship that is broader in scope and longer in duration than the government actually needs. As a result, the court held the government’s interest in national security overcomes any First Amendment interests at stake.
The ruling is seriously flawed.
In order to find that the law satisfied strict scrutiny, the court overlooked both the overinclusiveness and indefinite duration of NSL gag orders. Narrow tailoring requires that a restriction on speech be fitted carefully to just what the government needs to protect its investigation and that no less speech-restrictive alternatives are available.
But NSLs are often wildly overinclusive. For example, they prevent even a company with millions of users like Cloudflare from simply saying it has received an NSL, on the theory that individual users engaged in terrorism or espionage might somehow infer from that fact alone that the government is on their trail.
The court admitted that a blanket gag in this scenario might well be overinclusive, but it simply deferred to the FBI’s decisionmaking. But of course, under the First Amendment, decisions about censorship aren’t supposed to be left to officials whose "business is to censor.” And here, we know that NSLs routinely issue to big tech companies with large numbers of users like both Cloudflare and CREDO, and only in rare circumstances does the FBI allow these companies to report on specific NSLs they’ve received.
Similarly, the FBI often leaves NSL gags in place indefinitely, sometimes even permanently. Indeed, the FBI has told our client CREDO that one of the NSLs in the case is now permanent, and the Bureau will not further revisit the gag it imposed to determine whether it still serves national security. Here again, the court acknowledged that at the least, narrow tailoring requires a gag “must terminate when it no longer serves” the government’s national security interests. But instead of applying the First Amendment’s narrow tailoring requirement, the court declined to “quibble” with the censoring agency, the FBI, and its loophole-ridden internal procedures for reviewing NSLs. Nevertheless, these procedures “do not resolve the duration issue entirely,” as the Ninth Circuit understatedly put it, since they may still produce permanent gags, as with CREDO. As a result, the court suggested that NSL recipients can repeatedly challenge permanent gags until they’re finally lifted.
The problem of prior restraints and judicial review
However, that points to the other fundamental problem with NSLs: they are issued without any mandatory court oversight. As discussed above, prior restraints are almost never constitutional. The Supreme Court has said that even in the rare circumstance when prior restraints can be justified, they must be approved by a neutral court, not just an executive official. But the NSL statute doesn’t require a court to be involved in all cases; instead, judicial review takes place only if NSL recipients file a lawsuit, like our clients did, or if they ask the government to go to court to review the gag using a procedure known as “reciprocal notice.”
The Ninth Circuit had two responses to this lack of judicial oversight.
First, it wrongly suggested the law of prior restraints simply does not apply here. The theory is that unlike cases involving newspapers that are prevented from publishing, NSL recipients haven’t shown a preexisting desire to speak, and when they do, they’re asking to publish information they supposedly learned from the government. But as we pointed out, that’s inconsistent with case law that says, for instance, that witnesses at grand jury proceedings—which are historically both secret and subject to court oversight—cannot be indefinitely gagged from talking about their own testimony. NSL gags go much further.
Second, the court suggested that even though the burden is on NSL recipients to challenge gags, this is a “de minimis” burden that doesn’t violate the First Amendment. When Congress passed the USA FREEDOM Act in 2015, it gave recipients the option of invoking reciprocal notice and asking the government to go to court rather than filing their own lawsuit. That’s simply not good enough; the First Amendment requires the government be the one to go to court to prove to a judge it actually requires an NSL accompanied by a gag. Not to mention that forcing companies that receive NSLs to fight them in court and defend user privacy may actually be a heavy burden.
Big progress nonetheless
Despite these considerable errors in the Ninth Circuit’s opinion, we shouldn’t lose sight of progress made along the way. Nearly all of the features of the NSL statute that the court pointed to as saving graces of the law—the FBI’s internal review procedures and the option for reciprocal notice most notably—exist only because Congress stepped in during our lawsuit to amend the law.
So what’s left to providers that receive NSLs? Push back on the gags early and often. The “reciprocal notice” process, which the government says only requires a short letter or a phone call, should be done as a matter of course for any company receiving an NSL. And since the Ninth Circuit said that courts retain the ability to re-evaluate the gags as long as they remain in place, gagged providers should ask a court to step in and make sure the FBI can still prove the need for the gag—potentially over and over—until the gag is finally lifted. EFF wants to help with this, and we’re happy to consult with anyone subject to an NSL gag.
Finally, we’ve seen other courts question gag orders in related contexts, and we’ve supported companies like Facebook and Microsoft in these fights. We’re confident that in the long run, these prior restraints will be roundly rejected yet again.
Imagine trying to do online research on breast cancer, or William S. Burroughs’ famous novel Naked Lunch, only to find that your search results keep coming up blank. This is the confounding situation that faced Microsoft Bing users in the Middle East and North Africa for years, made especially confusing by the fact that if you tried the same searches on Google, it did offer results for these terms.
Problems caused by the voluntary blocking of certain terms by intermediaries are well-known; just last week, we wrote about how payment processors like Venmo are blocking payments from users who describe the payments using certain terms—like Isis, a common first name and name of a heavy metal band, in addition to its usage as an acronym for the Islamic State. Such keyword-based filtering algorithms will inevitably results in overblocking and false positives because of their disregard for the context in which the words are used.
Search engines also engage in this type of censorship—in 2010, I co-authored a paper [PDF] documenting how Microsoft Bing (brand new at the time) engaged in filtering of sex-related terms in the Middle East and North Africa, China, India, and several other locations by not allowing users to turn off “safe search”. Despite the paper and various advocacy efforts over the years, Microsoft refused to budge on this—until recently.
At RightsCon this year, I led a panel discussion about the censorship of sexuality online, covering a variety of topics from Facebook’s prudish ideas about the female body to the UK’s restrictions on “non-conventional” sex acts in pornography to Iceland’s various attempts to ban online pornography. During the panel, I also raised the issue of Microsoft’s long-term ban on sexual search terms in the Middle East, noting specifically that the company’s blanket ban on the entire region seemed more a result of bad market research than government interference, based on the fact that a majority of countries in the MENA region do not block pornography, let alone other sexual content.
Surprisingly, not long after the conference, I did a routine check of Bing and was pleased to discover that “Middle East” had disappeared from the search engine’s location settings, replaced with “Saudi Arabia.” The search terms are still restricted in Saudi Arabia (likely at the request of the government), but users in other countries across the diverse region are no longer subject to Microsoft’s safe search. Coincidence? It's hard to say; just as we didn't know Microsoft's motivations for blacklisting sexual terms to begin with, it was no more transparent about its change of heart.
Standing up against this kind of overbroad private censorship is important—companies shouldn’t be making decisions based on assumptions about a given market, and without transparency and accountability. Decisions to restrict content for a particular reason should be made only when legally required, and with the highest degree of transparency possible. We commend Microsoft for rectifying their error, and would like to see them continue to make their search filtering policies and practices more open and transparent.