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Applying strict liability law to social media

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The argument makes sense to me. It’s hard to deny that the products have inadequate safeguards (there’s more to safety than merely physical safety), and in some cases the safeguards were deliberately omitted (cf. Coca Cola’s cocaine — or the amping of nicotine in cigarettes). In situations in which manufacturers are unwilling to make their products safe for consumers, the government rightly takes the role of protecting the public since individual consumers have little power compared to a corporation.

Matt Stoller writes in Big:

Speech or Product?

One of the more interesting cases around internet law is a stalking case having to do with a 33 year-old actor living in New York City, Matthew Herrick. Buzzfeed reported on it last year. Here’s the story:

At the peak of the abuse Matthew Herrick suffered, 16 men showed up every day at his door, each one expecting either violent and degrading sex, drugs, or both. Herrick, a 32-year-old aspiring actor living in New York City, didn’t know any of them, but the men insisted they knew him — they’d just been chatting with him on the dating app Grindr. This scenario repeated itself more than 1,000 times between October 2016 and March 2017.

Herrick had deactivated his account and deleted the Grindr app from his phone in late 2015 when he’d started dating a man referred to in court documents as J.C., whom he’d met on the app. The two broke up in fall 2016. Soon after, according to court filings, J.C. began stalking Herrick and created fake profiles on Grindr impersonating Herrick… The profiles falsely claimed Herrick was HIV-positive and interested in unprotected sex and bondage. Through Grindr, Herrick says J.C. directed these men to his apartment or workplace, creating a world of chaos for him on a daily basis.

“It was a horror film,” Herrick told BuzzFeed News in an interview. “It’s just like a constant Groundhog Day, but in the most horrible way you can imagine. It was like an episode of Black Mirror.”

Protective orders and police reports against J.C. failed to stop the torrent of harassment. Herrick, his friends, and lawyers submitted 100 complaints to Grindr asking it to block J.C., but they received no response.

Eventually, Herrick, represented by victim’s rights attorney Carrie Goldberg, sued Grindr, using a novel legal theory to address this new form of stalking. “I argued,” Goldberg wrote in a filing to the Federal Communications Commission, “that Grindr is a defectively designed and manufactured product as it was easily exploited if didn’t have the ability to identify and exclude abusive users.” She was making a product liability claim.

Such an argument about a tech platform, even one like Grindr, is unusual, to say the least. There’s bad faith here, some big tech friendly scholars really want the debate to be about how to protect the public square of Facebook and Google from the meddling hand of democracy. But even lawyers and scholars who disdain the pernicious effects of platforms think about technology platforms as facilitating speech. They dislike misinformation, disinformation, fraud, and so forth, but they try to shoehorn claims about the problems with social media, search engines, or matching engines into the legal debate over the first amendment or technology. And it’s a seductive path to go down, since technology is cool, and free speech is such a powerful American norm to argue about.

The desire to argue through the political lens of free speech is further heightened by the biggest magnetic attention draw in the world, Donald Trump. A few months ago, Trump argued that large technology platforms organize themselves by censoring conservative speech. He issued an executive order mandating the government see what it could do to hold tech platforms accountable for controlling speech. Specifically, Trump ordered the Federal Communications Commission to make regulatory changes to a law called Section 230 of the Communications Decency Act, which is a shield useful to large technology platforms, as well as services like Grindr, who used it to defend against Herrick’s claim.

The law is conceptually simple. Section 230 was passed in 1996 to protect the ability of AOL and Compuserve to run chatrooms without having to be responsible for what other people used them for. The law basically ensured that if a user said something defamatory on AOL’s chatroom, the user, not AOL, would be liable. And whether AOL chose to take it down, filter content in a specific way, or keep it up, AOL would be protected by a ‘Good Samaritan’ clause which says that it is allowed to run its service however it wants, and it is never responsible for what third party speakers say. That’s why Google can display whatever search results or ads it wants, or Facebook can organize its algorithm however it wants, and neither corporation can be sued for third party content. Mark Zuckerberg may tell the public he’s responsible for what happens on Facebook, but the law says he isn’t.

Section 230 is understood as the legal cornerstone of digital platforms. There’s even a book titled “The Twenty-Six Words that Created the Internet,” because the key section is just twenty six words long (“No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”) So when Trump attacked Section 230 with his executive order, tech lobbyists went nuts. But protectors of Section 230 extend far beyond the big tech lobbying world.

The American Civil Liberties Union supports Section 230. So does the liberal group Common Cause, an organization created during the Nixon administration to take on that corrupt President. In Goliath, I showed how liberals were fooled in the 1970s into supporting corporate power, and there’s no better example than how many left-wing organizations support this law as a bulwark of free speech, instead of a liability shield for a particular kind of business model. Common Cause even brought a suit asserting the entire executive order was unconstitutional, the premise of which is that it violates Facebook’s corporate right to free speech. (One wonders if Common Cause still opposes Citizens United…)

Interestingly, free speech and Section 230 was also Grindr’s defense to Herrick’s lawsuit. Grindr argued it is merely a speech platform (or in Section 230 parlance, an ‘interactive computer service’), and if someone used Grindr to put Herrick in danger, well, it’s not Grindr’s fault. Goldberg scoffed at the notion that the case was about speech; Grindr was simply a defective product, no different than an exploding toaster. “If you engineered and are profiting off one of the world’s biggest hook-up apps and don’t factor into its design the arithmetic certainty,” Goldberg wrote, “that it will sometimes be abused by predators, stalkers, rapists – you should be responsible to those you injure because of it.”

The district court, however didn’t agree with the exploding toaster theory. “I don’t find what Grindr did to be acceptable,” US District Court Judge Valerie E. Caproni said, but she ruled for Grindr nonetheless. In the case, Grindr won on the basis that it is an interactive computer service immunized by Section 230, and that it bears no liability for the speech or actions of the stalker. On appeal, the situation repeated itself. The judges agreed with Herrick on the moral argument, but with Grindr on the law. “The whole thing is horrible,” said one appeals judge, Judge Dennis Jacobs. “But the question is, what’s the responsibility of Grindr?” Goldberg eventually appealed it to the Supreme Court, which refused to hear the case. It’s not a crazy decision, as the stalker is clearly the key responsible party orchestrating the scheme. But there’s also something deeply problematic at work, because it’s evident that Grindr was assisting the bad behavior; Grindr even refused to help Herrick confirm who was behind the fake profiles.

It’s not just Grindr that induces such problems. Other services, like Facebook, YouTube, Google search, Twitter, etc can place people in imminent danger, facilitate libel, foster housing discrimination, enable the sale of counterfeit or defective products, or organize a host of fraudulent activities. I went over a some of these problems when I found Chinese scammers using advertising on Facebook to sell counterfeit Rothy’s, a premium women’s shoe brand. A reader of BIG told me she didn’t realize she was buying counterfeit shoes, and meanwhile Rothy’s noted they couldn’t get Facebook to take the ads down.

In fact, Section 230 has become the shield for swaths of corrupt activities; Facebook can’t be held liable for enabling with Grindr did, for the same reason, because it is merely an ‘interactive computer service.’ Like J.C.’s impersonation of Herrick, scammers use Facebook to impersonate soldiers so as to start fake long-distance relationships with lonely people, eventually tricking their victims into sending their ‘boyfriends’ money. Soldiers are constantly finding fake profiles of themselves, and victims are constantly cheated in heart-breaking ways. The military is helpless to do much about this, the power to act is in Facebook’s hands.

In other words, Section 230, and the law governing the structuring of platforms on the internet, creates a very weird kind of politics. In some ways it puts victim rights lawyers and Trump on the same side against liberal groups and big tech monopolies, though the debate is in fact much more scrambled. Trump isn’t wrong to critique Section 230, but his argument about conservative bias is, putting accuracy aside, besides the point. It’s not that there aren’t free speech issues at work, but the underlying problem is that the law creates an incentive for corrupt business models.

Is a Slot Machine a Platform for Speech?

Thinking of Facebook, Grindr, or Google as products or as communications networks, instead of as the public square, makes a lot of sense. Section 230 was created at a time when people distinguished between the offline and online world. But today, it makes no sense to distinguish between internet services and the rest of the economy. Convergence isn’t happening, it has happened; Amazon owns warehouses and massive real estate holdings, Walmart has a thriving online marketplace, and Google and Facebook both operate large data centers and undersea cables.

Moreover, data and information services are increasingly analogous to physical products. A slot machine is a slot machine, whether it has a physical lever or a browser. Internet services, such as video games and social media, can have addictive qualities with physiological characteristics similar to narcotics or gambling. As former Facebook executive Sean Parker noted, social media executives knowingly took advantage of these characteristics in product design.

Moreover, while it’s easy to blame the individual, there’s a lot of research that overuse of these services can result in depression, memory loss, alcoholism, and reduced empathy and social development. Even the basis for assuming that colors, formatting, and content are merely speech is falling apart; a judge recently ruled that a graphic sent to a writer via Twitter designed to trigger (and that did trigger) an epileptic seizure in the recipient was assault. It makes increasingly less sense to characterize the wide variety of available digital goods and services, or goods and services with embedded digital capacity, purely as speech whose transmission is covered by Section 230 of the Communications Decency Act.

And if that is so, then we need  . . .

Continue reading

Written by Leisureguy

5 September 2020 at 10:13 am

Therapy in another language via Skype

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Very interesting article in the NY Times by the therapist Anastasia Piatakhina Giré:

I have a psychotherapy practice in Madrid, but I often receive email requests for counseling from people in other parts of the world, since I also practice psychotherapy online, via Skype, in several languages: English, French, Italian and Russian. Alex’s email looked like spam, and I nearly deleted it. He wrote in an abrupt English, with neither a greeting nor a sign-off. When I read more closely, I saw that he was seeking therapy, though he didn’t say much else. In his brevity I sensed hesitation, a shade of doubt.

Some hide-and-seek is not unusual in the early phase of the therapy process. Asking for help involves a degree of exposure, which can trigger feelings of shame. For those who are wary about psychotherapy, the online format often appeals, as it avoids the physical, face-to-face confrontation of a classical consulting room and offers the option, or at least the illusion, of anonymity.

I wrote Alex back, asking if he might say a little more.

His second email was a bit longer, perhaps because he now trusted that behind my web page there was in fact a real person available to listen. He alluded to his “continuous work on overcoming my homosexuality.”

At this stage, I would usually invite a client to meet me via Skype to talk at greater length. But I was curious (I am only human): Where was Alex from? Something about his brisk, straightforward and slightly aggressive mode of address felt familiar to me, and I suspected he was Russian. But I am Russian, too. Why didn’t he avail himself of our common native language?

I wrote another email to Alex, listing the various languages in which I practiced therapy, and noting that Russian was my first language. It turned out that he was indeed Russian, and lived in a remote city many miles away from Moscow or St. Petersburg. At that point, we switched to speaking Russian. And we set up a time to talk via Skype.

At the beginning of our first Skype session, . . .

Continue reading.

Written by Leisureguy

5 April 2015 at 9:20 am

Bad news for Skype, possibly

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I use Skype quite a bit, and I love it. But now…  Matthew Shaer in the Christian Science Monitor:

For Skype, the line could be going dead.

At issue is a key piece of software code licensed to Skype by a company called Joltid. For months, Joltid and Skype have been scrapping over the legal rights to the code – and now, the battle has gotten serious enough that eBay, which owns Skype, is getting worried. If Skype loses the right to the software code, “Skype’s business as currently conducted would likely not be possible,” eBay said in a quarterly filing with the US Securities and Exchange Commission.

The hitch sent tremors through the tech world, not least because eBay was reportedly considering letting Skype go public. “Waiting for eBay to spin off Skype into the stock market? Don’t hold your breath,” Kevin Kelleher wrote on GigaOm. The legal battle “could delay the move until at least the second half of next year — and possibly put the entire offering into jeopardy,” Kelleher wrote.

According to several news reports, Joltid claims that eBay broke the original licensing contract. EBay, meanwhile, seems unsettled by the affair – and concerned about the long-term implications.

“Although Skype is confident of its legal position, as with any litigation, there is the possibility of an adverse result if the matter is not resolved through negotiation,” eBay wrote in the SEC filing. “Skype has begun to develop alternative software to that licensed through Joltid. However, such software development may not be successful, may result in loss of functionality or customers even if successful, and will in any event be expensive.”

Written by Leisureguy

3 August 2009 at 11:32 am

Can you help NSA? They want to eavesdrop on Skype conversations

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There’s no end to it. Read the story.

Written by Leisureguy

2 March 2009 at 8:35 am

Posted in Daily life, Government, Skype, Technology

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Skype as a primary phone

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Very interesting post by Dustin Wax on exploiting Skype to the max.

Written by Leisureguy

11 October 2008 at 10:03 am

Skype: better than ever

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I hadn’t used Skype for a while, but had occasion this morning to make a call—my God! they’ve been working at that. Incredible sound—absolutely clear, with 13,000,000 people making calls at the time—and lots of new features. If you haven’t used Skype for a while, take another look. Free and good.

Written by Leisureguy

24 September 2008 at 9:41 am

Posted in Daily life, Skype, Software

Recording Skype calls

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If you do conference calls on Skype, for example, you might well want to record them. Or if you do a phone interview, you might find recording it to be helpful. Or if you’re making arrangements by phone for a get-together and you’re worried that the details are going to be too numerous to remember and you don’t want to take notes while talking. Here’s how. Free, of course.

Written by Leisureguy

30 May 2008 at 1:09 pm

If you use Skype for Windows

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Open Skype, click Help, click Check for Updates. There’s a new hot fix to cure some security problems.

Written by Leisureguy

7 February 2008 at 9:12 am

Posted in Daily life, Skype, Software

What Google would do with Skype

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This is an interesting possibility:

Yeah, we know this is just a rumor, but it has quickly bubbled to the top of the VoIP blogosphere, and the ramifications are looming large. Skype may be on eBay’s auction block (no pun intended). Among the potential buyers for such a property are the usual suspects–Microsoft, Google, Yahoo, and even Facebook if they could afford it. But the excitement about Google seems to be the most fervent. Here’s why.

Google is a platform company. Their platform is all about monetizing other people’s content. They do it by providing self-service solutions that capture revenue generated on the backs of other content producers. One of their clarion calls has always been–increase use to increase revenue. And nobody does this better than Google.

It was for this reason–increasing use–that eBay invested in Skype. But post-merger politics ruined the exciting possibilities. We never got widespread adoption of Skype on eBay because in order to promote Skype, eBay must also have allowed Skype’s competitors (or at least refrain from blocking their use on the site). That was never going to work. The 1.0 mentality at eBay was just too pervasive, even with such a future-bright asset like Skype.

Google, on the other hand, opens just about everything up. So Google’s idea of competing is to show the competition exactly what they’re holding, source code and all. And that’s the crux of it–if Google does get its hands on Skype, count on getting access to Skype you previously never dreamed of: full-blown APIs, web service models, the specs for the Skype signaling protocol, and yes, almost certainly, source code.

Written by Leisureguy

21 November 2007 at 6:22 pm

Globalization: some things to think about

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Via Constant Reader:

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19 September 2007 at 7:41 pm

Skype tools, enhancements, add-ins

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Take a look.

Written by Leisureguy

10 September 2007 at 2:56 pm

Posted in Skype, Software

Please test before release, part 2

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Now Skype has done it. I downloaded and installed the latest release of Skype, which has many nice new features, and found it couldn’t connect. Moreover, I couldn’t even submit a trouble report—the box where you describe the problem (required) is blocked so that you can’t make an entry. Looking at their forum, I discovered why:

Hello everyone,

Apologies for the delay, but we can now update you on the Skype sign-on issue. As we continue to work hard at resolving the problem, we wanted to dispel some of the concerns that you may have. The Skype system has not crashed or been victim of a cyber attack. We love our customers too much to let that happen. This problem occurred because of a deficiency in an algorithm within Skype networking software. This controls the interaction between the user’s own Skype client and the rest of the Skype network.

Rest assured that everyone at Skype is working around the clock — from Tallinn to Luxembourg to San Jose — to resume normal service as quickly as possible.

Written by Leisureguy

17 August 2007 at 10:59 am

Posted in Skype, Software

Second go at Rose of Sharon Acres shaving soap

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This time I used my Finest brush, and I worked the soap for a good long while to get as much soap into the brush as possible. And the shave did indeed go better, but the lather still was thin and was vanishing as I shaved. Sort of the opposite of the thick, creamy lather one wants.

Still, the shave went well. The lather isn’t very protective during the shave, but my skin feels good. I think it will make a good shower soap.

Futur razor, 4711 aftershave. Nice smooth result.

Written by Leisureguy

19 April 2007 at 8:25 am

Posted in Shaving, Skype

Skype headset advice

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From AskMeFi.

Written by Leisureguy

1 February 2007 at 4:29 pm

Posted in Skype, Technology

Good start this morning

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First, awoke to find Megs asleep on top of me—first time in a couple of months. Then a great shave. I used the Simpsons Emperor 2 Super Badger brush, and the soap was the amazing Special 218 from QED, an underappreciated soap in my opinion. The basic formulation is the same for all the QED soaps, but the fragrance for Special 218 is intense and evocative. (By a happy coincidence, I’m reading The Secret of Scent, by Luca Turin, which I got for Christmas.)

If you’re a shaver, you owe it to yourself to start the new year right and get yourself a tub of Special 218. QED’s phone is +1-401-433-4045. (If you have the Skype add-on installed in your Firefox, you can just click that number. 🙂 ) If you don’t have a shaving brush, Charles can help you out with that, too. I like a 22mm knot, but YMMV. He doesn’t carry Simpsons, though. (If you want the Emperor, a great brush, try here.)

And I brought out and used my Gillette Milord, a very early version without the notches in the center bar. (The one in the photo is not mine, but just like mine.) It delivers a great shave with a new Feather. Finished with Thayers Lemon Witch Hazel, “like a tall glass of lemonade for your skin.”

Written by Leisureguy

29 December 2006 at 8:53 am

Posted in Books, Daily life, Shaving, Skype

Skype email toolbar

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A Skype toolbar you can add to Outlook, Outlook Express, or Thunderbird—Windows only, I fear, though I’m sure the Mac already has something better. Via Lifehacker.

Things you can do with Skype Email Toolbar

  • Call Skype Names and phone numbers written in emails
  • See when your contacts are online
  • Start instant messaging in follow up to emails
  • Add a Skype Button to your email signature, so other people can just click to call you

UPDATE: Well, maybe you can install it. I get a DLL error. I’ll wait to see whether it’s a bug to be fixed. In the meantime: boy, do I love A43, a (free) Windows Explorer replacement. I haven’t mentioned it for a while, but I use it all the time, and it’s just great.

Written by Leisureguy

27 December 2006 at 10:36 am

Posted in Skype, Software

Free on-line Web conferencing

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This is pretty cool, via Download Squad: Yugma provides free on-line Web conferencing. It can be from one person to many, as doing a presentation: the attendees see your monitor screen (e.g., doing a PowerPoint presentation). For audio, you can use Skype, for example, which has free conferencing phone calls (among Skype users) or Gizmo Project (likewise).

The use that intrigues me, though, is the many-to-many conference, as for a work group or team meeting: the current speaker’s screen is shown, and all conference members see it. They current speaker can be any of the conference presenters.

The software runs on Mac or Windows, and it includes mark-up tools. Take a look. There’s at the link.

Written by Leisureguy

19 December 2006 at 4:42 pm

Posted in Skype, Software

Latest Skype add-in

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The Skype add-on for Firefox is just great: whenever a phone number shows up on screen, it’s now decorated with a little logo and becomes a clickable button. I just called Whole Foods to check on dried egg whites—when I looked up the store, I could then just click the phone number to call them. Cool. Suddenly buying the $15 unlimited calls for an year thing makes a lot more sense.

Written by Leisureguy

19 December 2006 at 10:39 am

Posted in Daily life, Skype

Skype 3.0 now officially released

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I’m downloading it as I write. If you use the “Check for Updates” under “Help,” it doesn’t find 3.0, but if you go to the link you can download and install. Windows only. If you use Skype, might as well update now. If you don’t, you might as well give it a try.

Written by Leisureguy

14 December 2006 at 9:12 am

Posted in Skype, Software

Gizmo instead of Skype?

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With Skype now charging $15/year for unlimited Skypeout calls (i.e., to landline and mobile (non-Skype) phones) to US and Canada and 2.1¢/minute for overseas Skypeout calls—and 2.1¢/minute for Skypeout calls to US and Canada if you don’t take the annual plan—one starts to look around.

Gizmo, for example, seems to charge 1¢/minute for its “Skypeout” calls—and promises better sound than Skype (and, according to one guy, delivers on the promise—YMMV). Maybe we should give Gizmo a go.

UPDATE: Based on first test call, Gizmo does indeed have better sound quality than Skype—just one call, though. It looks as though no video calls, though.

Written by Leisureguy

13 December 2006 at 3:31 pm

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