Oct 212017
 

The following is the second in a pair of posts on Techdirt about how SESTA’s attempt to carve-out “trafficking” from Section 230’s platform protection threatens legitimate online speech having nothing to do with actual harm to trafficking victims.

Think we’re unduly worried about how “trafficking” charges will get used to punish legitimate online speech? We’re not.

A few weeks ago a Mississippi mom posted an obviously joking tweet offering to sell her three-year old for $12.

I tweeted a funny conversation I had with him about using the potty, followed by an equally-as-funny offer to my followers: 3-year-old for sale. $12 or best offer.

The next thing she knew, Mississippi authorities decided to investigate her for child trafficking.

The saga began when a caseworker and supervisor from Child Protection Services dropped by my office with a Lafayette County sheriff’s deputy. You know, a typical Monday afternoon.

They told me an anonymous male tipster called Mississippi’s child abuse hotline days earlier to report me for attempting to sell my 3-year-old son, citing a history of mental illness that probably drove me to do it.

Beyond notifying me of the charges, they said I’d have to take my son out of school so they could see him and talk to him that day, presumably protocol to ensure children aren’t in immediate danger. So I went to his preschool, pulled my son out of a deep sleep during naptime, and did everything in my power not to cry in front of him on the drive back to my office.

All of this for a joke tweet.

This story is bad enough on its own. As it stands now, actions by the Mississippi authorities will chill other Mississippi parents from blowing off steam with facetious remarks on social media. But at least the chilling harm is contained within Mississippi’s borders. If SESTA passes, that chill will spread throughout the country. Continue reading »

Oct 212017
 

The following is the first of a pair of posts on SESTA highlighting how carving out an exception to Section 230’s platform protection for sex trafficking rips a huge hole in the critical protection for online speech that Section 230 in its current form provides.

First, if you are someone who likes stepped-up ICE immigration enforcement and does not like “sanctuary cities,” you might cheer the implications of this post, but it isn’t otherwise directed at you. It is directed at the center of the political ven diagram of people who both feel the opposite about these immigration policies, and yet who are also championing SESTA. Because this news from Oakland raises the specter of a horrific implication for online speech championing immigrant rights if SESTA passes: the criminal prosecution of the platforms which host that discussion.

Much of the discussion surrounding SESTA is based on some truly horrific tales of sex abuse, crimes that more obviously fall under what the human trafficking statutes are clearly intended to address. But with news that ICE is engaging in a very broad reading of the type of behavior the human trafficking laws might cover and prosecuting anyone that happens to help an immigrant, it’s clear that the type of speech that SESTA will carve out from Section 230’s protection will go far beyond the situations the bill originally contemplated. Continue reading »

Oct 212017
 

The following was posted on Techdirt 10/16/17.

In the wake of the news about Harvey Weinstein’s apparently serial abuse of women, and the news that several of his victims were unable to tell anyone about it due to a non-disclosure agreement, the New York legislature is considering a bill to prevent such NDAs from being enforceable in New York state. According to the Buzzfeed article the bill as currently proposed still allows a settlement agreement to demand that the recipient of a settlement not disclose how much they settled for, but it can’t put the recipient of a settlement in jeopardy of needing to compensate their abuser if they choose to talk about what happened to them.

It’s not the first time a state has imposed limits on the things that people can contract for. California, for example, has a law that generally makes non-compete agreements invalid. Even Congress has now passed a law banning contracts that limit consumers’ ability to complain about merchants. Although, as we learn in law school, there are some Constitutional disputes about how unfettered the freedom to contract should be in the United States, there has also always been the notion that some contractual demands are inherently “void as against public policy.” In other words, go ahead and write whatever contractual clause you want, but they aren’t all going to be enforceable against the people you want to force to comply with them.

Like with the federal Consumer Review Fairness Act mentioned above, the proposed New York bill recognizes that there is a harm to the public interest when people cannot speak freely. When bad things happen, people need to know about them if they are to protect themselves. And it definitely isn’t consistent with the public interest if the people doing the bad things can stop people from knowing that they’ve been doing them. These NDAs have essentially had the effect of letting bad actors pay money for the ability to continue the bad acts, and this proposed law is intended to take away that power.

As with any law the devil will be in the details (for instance, this proposed bill appears to apply only to non-disclosure clauses in the employment context, not more broadly), and it isn’t clear whether this one, as written, might cause some unintended consequences. For instance, there might theoretically be the concern that without a gag clause in a settlement agreement it might be harder for victims to reach agreements that would compensate them for their injury. But as long as victims of other people’s bad acts can be silenced as a condition of being compensated for those bad acts, and that silence enables there to be yet more victims, then there are already some unfortunate consequences for a law to try to address.

Oct 032017
 

I always knew, even before I applied to college, that I wanted to be a mass communications major.  At UC Berkeley (where I went) the major required a choice of several pre-requisites.  On a lark, I decided to take Sociology 1.

As a major portion of our grade, we needed to do some sort of social research project.  I was new to the Bay Area and surprised to see how many panhandlers congregated near the BART stations in San Francisco.  So I decided to research commuters’ attitudes towards giving money to them.

My classmate and I put together a one-page survey that collected some broad demographic data (age, sex, general income level, etc.) and then asked several questions about donation habits.  Then we set out for a BART station to distribute our survey to evening commuters.

Our goal was to give a survey to everyone we could, but we also had some sense of not wanting to skew the data we collected by accidentally giving the survey to, say, more men than women.  So we tried to passively make sure we were giving it out in relatively equal numbers to both.  And from 5pm to 6pm that was easy.  But once 6pm rolled around, all of a sudden we noticed that we couldn’t find many women to give it to.  Male commuters vastly outnumbered them.  We administered the survey on two evenings, and both times made the same observation.

Nonetheless we persevered, and managed to collect 100 usable surveys, of which 50 ultimately turned out to be from men and 50 from women.  But then we noticed another gender difference:

Of those 50 men, 27 reported earning more than $50,000 a year.

Of those 50 women: 6.

And this is why I became a sociologist.  Because while I firmly believe that people are all individuals capable of free will, it is clear that there are unseen forces that affect their decisions.  Sociology is about revealing what those forces are.

The paper we wrote is now lost to history (or lost in an inaccessible attic somewhere, which is essentially the same thing), but my recollection is that the data revealed yet another gender difference: as men grew more wealthy they tended to give less, whereas for women, the trend was the opposite.  Based on the written comments we got back we surmised that poorer men had a greater sense of empathy for those needing handouts, and wealthier women a greater sense of freedom to be able to afford to help.

But whatever the result and whatever the reason, the takeaway from the project I still carry with me was that we need to pay attention to those invisible forces, particularly in policy discussions.  We can’t simply demand that people act differently than they do: we need to understand why they act as they do and what needs to change for them to be able to choose to act differently.