Shopify, Breitbart, and Freedom of Speech.

Tonight I came across an article on TechCrunch in response to an open letter from Tobias Lütke, CEO of e-commerce platform Shopify, in which he defends the company’s decision to continue hosting Breitbart’s online shop. Breitbart being the infamous far right publication of which Steve Bannon was heavily involved with.

After sustained criticism, Lütke explains in the post entitled ‘In Support of Free Speech’ that based upon a belief that ‘commerce is a powerful, underestimated form of expression’, it would be wrong to effectively censor merchants by shutting down their shops as the result of differing political views.

Reporting on the letter, TechCrunch shared their post to Facebook with the text: ‘Shopify’s CEO thinks his platform has a responsibility to continue hosting Breitbart’s store – here’s why he’s wrong.’

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I was curious to see the arguments that would be proffered as to why the decision was wrong, but was ultimately left wanting. Here are the reasons given, as far as I could make out:

  1. Lütke is grossly overestimating the role of a private e-commerce platform in providing and protecting freedom of expression.
  2. Shopify cannot ‘censor’ anybody, as they are not an emanation of the State.
  3. Justifying the continued hosting of merchants who have extreme views for freedom of speech reasons is wrong, as freedom of speech does not apply to private organisations.
  4. As a private company, Shopify are not legally required to provide a platform to anybody.
  5. Shopify’s Terms of Service allow them to terminate the account of any user at any time.

In response, here’s why TechCrunch are wrong:

None of the reasons given actually explain why Shopify shouldn’t continue to host Breitbart.

Read over them again, then check out the full article here. Despite heavily criticising Shopify, and stating that Lütke is ‘wrong’, TechCrunch don’t engage at all with the heart of the issue. No, Shopify are not legally required to host the Breitbart shop, and yes, quite obviously their Terms of Service are quite obviously worded in such a way to give them that discretion in the event of any legal challenge, but that’s hardly a surprise.

Here’s the big question that went unanswered: why should Shopify not host Breitbart?Lütke hits the nail on the head with the following challenge, which the TechCrunch article completely fails to even acknowledge:

When we kick off a merchant, we’re asserting our own moral code as the superior one. But who gets to define that moral code? Where would it begin and end? Who gets to decide what can be sold and what can’t?

Rather than attempt to address this fundamental issue, TechCrunch essentially just argue that Shopify should kick Breitbart off of their platform because, er, well, legally there’s nothing to stop them. A pretty poor argument at best.

Protecting freedom of speech isn’t just down to the State.

Firstly, I’m not sure where this idea that censorship is only something that the State can give effect to comes from. It means to forbid or to ban something; to suppress speech. The source doesn’t have anything to do with it.

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Secondly, there is a lot of confusion surrounding freedom of speech and the relation to the State, even from those who purport to understand the dynamic. To clear some things up, the following are true:

  • Freedom of speech law (generally) only protects citizens from the acts of State actors.
  • Private online service providers (generally) have no obligation to protect the freedom of speech rights of their users, or to give them a platform for expression.

However, to assert that a platform cannot justify their actions based on freedom of speech considerations, or to willingly strive to uphold those principles on the basis of the above is a non sequitur. Additionally, just because you can’t threaten legal action on a freeedom of speech argument against Facebook if they take down your status update, that doesn’t mean it is wrong to argue that Facebook should be doing more to consider and protect those values.

Just as we would not expect a hotel owner to be able to refuse to allow a same sex couple to share a bed, or a pub to knock back someone based purely on the colour of their skin, it is nonsense to pretend that we have no expectations of private organisations to abide by certain shared societal values.

Without touching on the claims around the importance of e-commerce as a vehicle for expression, it seems that in a world where we are increasingly reliant on private entities to provide our virtual town square equivalents, and where we expect certain values to be upheld, arguably platforms such as Shopify have an increasing moral obligation to protect (as far as is possible) the principles that are the cornerstone of our Democracies.

 

 

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Spot the difference

Apparently non British, Irish, or Commonwealth citizens will not be allowed to vote in the upcoming EU referendum in the UK.

I haven’t read into the actual law on this, just the media coverage, so caveat emptor, but:

More than 1million foreigners living in Britain will be banned from voting in the EU referendum, the Conservatives have announced, in a significant boost to Eurosceptic campaigners.

It comes after Eurosceptic MPs confronted ministers over the issue amid concerns that pro-Europeans could effectively rig the result by giving EU citizens the decisive vote.

(source)

The language we use is important.

Isn’t it interesting that here we see people living in the UK described as ‘foreigners’ – setting up an instant division – whilst the Scottish Government during the independence referendum process spoke not of ‘foreigners’, but of ‘the Scottish people’, irrespective of where they were from originally?

Isn’t it interesting that the result of the independence referendum was based precisely on the votes of the people who lived there, and not some ethnic idea of what Scottishness is supposed to be? Isn’t it interesting that this wasn’t seen as ‘rigging the result’, but as an integral part of it?

I don’t believe in ethnic politics. I believe in civic politics. Great Britain is a fundamentally racist construct that needs to be dissolved. The sooner the better.

Groupon: Trademark Bullies

Groupon: The wealthy business empire that has made its fortune from selling weekend trips and products like the ‘Purple Tickler Dildo’ directly to your e-mail inbox.

They’ve had their troubles in the past, with people apparently no longer feeling the magic of the often bizarre choices made by the virtual coupon giant.

groupon dildo
One of the fine products on offer through Groupon

 

However, today saw them coming under fire again. This time for not playing nicely with trademarks.

In a posting on their website, the open source software Foundation GNOME has issued a cry for financial help to oppose a list of trademark registrations that Groupon have filed with the US Patent and Trademark Office, which conflict with those that the Foundation have held since 2006.

It appears that Groupon wish to use these trademarks for the name of a new product that will be used as part of an electronic point of sale application. The scope of the usage described is pretty wide:

Providing use of cloud-based non-downloadable software for processing point of sale transactions, payment transactions, voucher redemption, appointment scheduling, customer relationship management, customer location detection and awareness, inventory management, analyzing merchant transactions, and for evaluating and managing information on business performance and customers; providing temporary use of non-downloadable software that enables users to send and receive pricing, financial transaction, customer information, and payment processing information directly to and from a mobile device and a cloud-based server; software as a service (SAAS) services featuring software that enables users to send and receive pricing, financial transaction, customer information, and payment processing information directly to and from a mobile device and a cloud-based server; providing use of cloud-based non-downloadable software for payment services, merchant analytics, and for evaluating and managing information on business performance and customers; technical support services, namely, troubleshooting in the nature of diagnosing computer hardware problems and troubleshooting of computer software problems; installation and maintenance services for computer software for processing point of sale transactions, payment transactions, voucher redemption, appointment scheduling, customer relationship management, customer location detection and awareness, inventory management, analyzing merchant transactions, and for evaluating and managing information on business performance and customers

(source)

As you can see, that’s pretty similar to the description of activities covered in the trademark held by the Foundation:

Downloadable computer software tools and libraries used for the development of other software applications; downloadable computer software development tools; downloadable computer software for creating and managing a computer desktop; downloadable computer software for use as a graphical user interface; downloadable computer software for word processing, database management, and use as a spreadsheet

The Internet were none too pleased about this, especially as Groupon has waxed lyrical about their admiration of open source software in the past. In an attempt to calm the waters, they gave the following statement:

Groupon is a strong and consistent supporter of the open source community, and our developers are active contributors to a number of open source projects. We’ve been communicating with the Foundation for months to try to come to a mutually satisfactory resolution, including alternative branding options, and we’re happy to continue those conversations. Our relationship with the open source community is more important to us than a product name. And if we can’t come up with a mutually acceptable solution, we’ll be glad to look for another name.

(source)
(second source with slightly different wording on Groupon’s Engineering blog)

On the face of it, this largely looks like it might have had the desired effect, with people considering the matter to be closed. However, it seems like nothing better than PR spin. Here’s why:

  • It is inconceivable that Groupon would not know about the prior existence of the GNOME Foundation’s trademark. If they didn’t, it should have come up in the course of proper due diligence.
  • Applying for identical trademark registrations in such a similar area is an aggressive move
  • If Groupon really was in talks with the Foundation, why did they go ahead and submit trademark applications anyway?
  • If the recent statement from Groupon really was serious, they should have announced an intention to retract the pending applications

Open source communities do not have the same resources to defend their intellectual property as large businesses do, which can make them seem like an easy target for organisations who wish to trade off of their established goodwill. Any defensive legal action would be hugely costly to pursue, and if the GNOME Foundation are forced to go down that route it will be a loss to the open source community as a whole. Thousands of Dollars that could be spent on further development and innovation will be used up fighting a needless battle with a company that can afford it.

Groupon should stand by its words, respect the GNOME Foundation’s intellectual property rights, and withdraw their outstanding applications. Otherwise they will be confirmed as nothing more than trademark bullies.

Update: Groupon have just posted the following statement:

UPDATE: After additional conversations with the open source community and the Gnome Foundation, we have decided to abandon our pending trademark applications for “Gnome.” We will choose a new name for our product going forward.

Those were some pretty quick ‘additional conversations’.

 

The Tories, Human Rights, and Scotland

Ever since they climbed into power on the shoulders of the Lib Dems, the Conservative Government has been threatening to do any number of the following:

  • Defy the judgements of the European Convention of Human Rights (ECHR)

  • Repeal the Human Rights Act 1998 (HRA)

  • Withdraw from the ECHR entirely

Aside from point one, where we saw the disgusting braying of mis-guided MPs as Westminster voted not to give (any) prisoners the ability to vote – thus racking up penalties against taxpayers in the process – these stated aims have so far been tempered by the unwillingness of the Lib Dems (or anybody else) to support them.

Now we hear that if the Conservatives win a majority in Parliament next year, that they will move to do some, or all of the above. Of course, we’re not entirely sure yet, as they haven’t seen fit over their entire term in power to begin to explain what a so-called ‘British Bill of Rights’ might look like. Plenty has been written on the lunacy of these plans by those far more able and influential than I, so I won’t spend time going over the same ground. However, one of the more interesting (and perplexing) possibilities that has been floated is the power and possibility of the Scottish Government blocking any removal of human rights obligations in Scotland, even if the situation is different in the rest of the UK. As the prolific blogger PeatWorrier commented:

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A few people have been discussing this possibility already, so it’s worth having a look at this in a bit more detail. Firstly, it’s important to know why the Tories are so hell-bent on attacking the conception of human rights as we know it.

Why do the Tories hate human rights so much?

The newspaper headlines will paint a story of pragmatic and concerned Conservatives who wish to deport ‘murderers, terrorists and rapists’, or stop them from having the vote. The notion of human rights as some sort of whiny legal set of technicalities akin to the dreaded ‘health and safety’ or ‘political correctness gone mad’ is presented, and almost always accompanied by sensationalist examples of people claiming that perfectly reasonable behaviour is infringing upon their rights. That these arguments don’t actually fall under the gambit of the HRA or the ECHR is irrelevant, so long as the words ‘human rights’ are in there somewhere, it’s enough to send Daily Mail readers everywhere into a frenzy-induced spell of foaming at the mouth.

However, there are two real main reasons why the Tories hate human rights. These are:

  • A dogged, and overblown sense of British sovereignty (the word British is important)

  • The inability to push through decisions whilst in Government because of the restrictions imposed upon them by the HRA and ECHR

This isn’t about any one example that we have seen over the past few years.

It isn’t about giving the prisoners the vote, or not being able to deport ‘that guy with the hook’, or even Christian Bed & Breakfast owners. This is about the Conservative Government’s ideological position – a uniquely British sense of entitlement based on a fundamental Diceyan view that nobody can over-rule a decision of the Westminster Parliament – not even Parliament itself.

This view is not without merit, and the positives of which are regularly put forward in arguments posited against the ‘meddling’ of the European Court of Human Rights (ECtHR) in Strasbourg. The theory is that Parliament is voted for by the British people, and so that Parliament should be sovereign at any one time, not bound by the decisions of any other body, including previous Parliaments.

However, whilst this idea of Parliamentary sovereignty sounds grand and principled, and no doubt served the Empire very well in times gone past (thank you very much), it is almost certainly no longer the case. As proponents of the Union were quick to declare during the debate on Scottish independence: ‘now is not the time to fragment communities and cause division, we are better together.’ What they failed to mention of course is that the British idea of Parliamentary sovereignty is incompatible with the idea of collective governance, or supranational jurisdiction. That is the real threat to the international bonds that tie us to other countries through trade and mutual obligations – not the independent status of a country itself.

Scotland Can’t Keep the HRA or ECHR Alone

The two possibilities opened up by the Conservatives lately are:

  • The UK would ‘negotiate’ changes to the relationship with the ECHR, so that decisions of the ECtHR would merely be ‘advisory’ rather than binding to Westminster and British courts

  • Failing the above, the UK would seek to withdraw from the ECHR completely, and establish a ‘British Bill of Rights’

It’s safe to say that the chance of the first scenario happening is slim to none, so we’ll focus on the second.

To quote from the Scotsman article mentioned above:

But if the opinion of Scotland’s elected representatives at Holyrood is to keep the Human Rights Act and its final court in Strasbourg, would Mr Cameron really be prepared to override that opinion?

The suggestion is that if the UK were to withdraw from the ECHR completely, that somehow Scotland could retain the current system separately. This ignores how the system actually works in practice.

Scotland and the ECHR: 

For the avoidance of any doubt, Scotland is not an internationally recognised state, nor a (separate) member of the European Council. It would be impossible for Scotland to remain part of the ECHR if the UK was to pull out. We had our chance for this to be a possibility, and we voted no. Equally, Scotland would have no special say over any other British region in whether or not the elected Westminster Government decided to remove the UK from the ECHR.

Scotland and the HRA: 

The Human Rights Act is written in to the fabric of the Scotland Act 1998 (which brought about the creation of the Scottish Parliament). As a creature of statute, the Scottish Parliament cannot pass laws that are incompatible with the Human Rights Act 1998, and are required to make a statement effectively recognising this before a law is passed on for Royal Assent. This is part of the reason why it has been suggested that Scotland should be ‘consulted’ before doing away with the HRA. Whilst this makes for an interesting political confrontation between the Scottish Parliament and Westminster over the type of country we might want to live in, it doesn’t seem clear how exactly Scotland could be consulted, or have any sort of say in the possible repeal of the HRA.

Accountability: 

Technically, the obligations contained within the HRA could be transposed into an Act that only applied to Scotland. This would require Scottish public authorities to act in a manner which is compatible with the ECHR rights, and allow individuals to bring actions against them where their rights were breached. However, it is at this point that things begin to fall apart.

The force of the ECHR comes from the ECtHR in Strasbourg. This greater authority that exists at a level above member states is necessary to protect people from decisions of their governments. Whilst the conversation in Scotland isn’t framed this way at present, it would be difficult to see where this force would come from should Scotland retain some form of HRA separately to the rest of the UK.

For example, if a human rights claim was raised against a decision of the Scottish legal system, who would hear the case? As already explained, Scotland would not be a signatory, and so recourse to the ECtHR would not be possible. There would be no appeal to courts elsewhere in the UK either, as (god forbid) they don’t have jurisdiction, and they would be ill-equipped to do so in any event – given that they would be operating in a completely different rights based framework.

Whilst a commitment to the operation of human rights in Scotland could be adopted, and enforced by the Scottish Parliament, it would lack the necessary accountability to operate in anything but a shadow of the form that currently exists.

This renders the proposition completely unworkable.

I believe that it is right for the Scottish Government to defend the HRA, and our continued membership of the ECHR – this is something that we all need to do. However, to suggest that Scotland could somehow operate the European human rights framework separately from the rest of the UK is fanciful.

For a more detailed legal look at this topic, see this post on the UK Human Rights blog.

‘Family Friendly’ UK Government Policies. What About Immigration?

Ever seeking to be seen as the ‘family man’, David Cameron has stated that in future, all government policies should pass a ‘family friendly’ test before becoming law. (#)

It should be pretty clear to anyone with a critical mind that this is nothing more than meaningless spin and rhetoric. Cameron’s government are focussed on what benefits the privileged, not the underdog, but they have to appeal to a moral position in order to condition skeptics into voting for them. However, there’s one specific example that immediately comes to mind that should illustrate the duplicity involved with this proclamation: that of immigration.

The usual bullshit position on immigration in the UK tends to be: “we’re here and it’s our right to be here – nobody else should be allowed. Foreigners should just go home.” – worded more or less diplomatically depending on who is involved. Immigration? Pah! Why should those immigrants be considered anyway?

Interestingly enough, experience has shown that this dogma transforms (as do many others) when the issue comes closer to home. It’s easy to dismiss immigrants of a different colour or nationality in the abstract, but not so much when one of your family members is separated from a loved one because of harsh and unpredictable immigration regulations.

The fact is that immigration policy in the UK is racist, and purposively both complex and contradictory in order to make the application process as difficult as possible. There are no elements of fairness or justice in how people are dealt with, and what results is a maddeningly frustrating and expensive undertaking for anybody who dares to fall in love with somebody from another country. When the system invariably break down, people are forced to appeal to the safeguard of the European Convention of Human Rights, which is then handily used as a scapegoat for undermining national sovereignty. Few point out the responsibility of the UK government to ensure that the system is fit for purpose in the first place.

There are endless amounts that have already been written about my own experience with the UK immigration process alone, but never published. It’s something I constantly swither over making public, partly through fear of any future reprisal. After all, we still have a number of years to go before we are completely out of the woods, and at any point our hard-fought battles could be revoked. Why is so little said about this stuff in detail by those who go through it? Because we are terrified of the possible consequences that might happen. People should know about what injustices happen in the system, and freedom of speech should guarantee the ability for that to happen, but who wants to risk it when their application may be denied?

For those of us who are on the receiving end of such policies, we know how awful it is. We know that immigration is a disgusting mess; one that has no concern for families, or for keeping them together. We know that kids get used solely as an excuse to raise the barrier for entry to the UK, not treated as human beings. We know that what really matters here is ethnicity, not family values. We know that it’s a specific kind of morality that is in mind here: that of the white, mother and father, British kind. We know that all this is true, and have resigned ourselves to being subjected to that, often silently… but to then turn around and talk about the importance of ‘family friendly’ policies is just flat out insulting.

Don’t believe a word of this pish.

 

Automattic/WordPress.com fight back against Censorship

WordPress LogoAutomattic – the company behind WordPress.com, have taken a decisive step in the fight against bogus DMCA claims.

Under the Digital Millennium Copyright Act, people can submit a takedown notice to web service providers where their intellectual property is being used without permission. This is the legislative attempt to protect hosts like Google, WordPress, Tumblr, etc from being held responsible for the content that their users post – provided that they swiftly restrict access.

However, whilst this system is designed to give a balance between protection and enforcement, the reality is that many times it is abused by those who wish to silence critics, or to censor views with which they disagree. The Church of Scientology infamously issued thousands of DMCA takedown notices to stop the spread of anti-Scientology views on Youtube, for example. This tactic is highly effective, as the content is almost always restricted (at its peak moment of attention), and the process to challenge the notices (a ‘counter notice’) isn’t something that creators are, or arguably should be, familiar with. In effect, it becomes a virtual game of ping-pong, with the burden of proof shifting to the ‘author’ of the content to prove that they actually have the rights to publish. Sites themselves can take action, but with the sheer volume of notices that they receive, it is often impractical, and rarely a route that businesses want to go down.

I’m both pleased and proud to see that WordPress are fighting back against two such bogus DMCA claims, as announced in this latest blog post, where you can find all the details of the two cases in question.

For the full text of the original post from Oliver Hotham – one of those that fell victim to the misrepresentative DMCA, continue reading below, where it is republished with permission.

Continue reading “Automattic/WordPress.com fight back against Censorship”

No, It’s Not Just About Porn

Glasgow Guardian NewspaperThe Glasgow Guardian is the student newspaper from the University of Glasgow, and is generally better than most of the publications of this type that I’ve come across – I’m not just saying that because they used to use my pictures.

I was surprised to come across an article in the last issue entitled ‘The day the porn was still there‘, which spoke about the proposed Internet filtering that the Government were seeking to impose on ISPs in the UK.

It wasn’t great. Have a read for yourself.

I wrote a response, which has been published in the current issue, on page 11.

For those of you that aren’t fond of viewing content online in a format suitable for print (and why would you be?) the text is below:

I write in response to the article entitled ‘The day the porn was still there’, published on the 16th of September 2013, by Imants Latkovskis.

In the interests of full disclosure, I am a member of the Open Rights Group Supporters’ Council – the ‘London based NGO’ whose views were criticised in the original piece. However, the purpose of this response is not to rise to defend the content of the organisation’s claims; that job is for somebody else – and not what I signed up for.

Aside from the over-use of emotive language, and massively reductive statements (“ticking the ‘I want porn’ box is unlikely to be the start of a dystopian future.”), Latkovskis has managed to miss the point completely; the thrust of the article seeming to be that ‘illegal porn is bad, so it’s good that they want to block it’.

Latkovskis states that in justifying the proposed filter, David Cameron was ‘referring to child pornography, which seems to be forgotten about quote after quote.’ However, he himself is guilty of confusing two quite distinct issues. This isn’t something that he should feel too bad about though, as the proposals have been deliberately designed to have this effect.

We have to separate out whether the purpose of an on-by-default Internet filter is either to:

1. Prevent access to illegal material, e.g. child pornography

or

2. Prevent people (ostensibly children) from accessing any pornography

These are two very different aims, and require equally different approaches.

It’s a moot point for the purposes of this article that none of these type of filtering systems actually work effectively in any regard. If you aren’t sure about that, just ask yourself when the last time was that you or a ‘friend’ used a VPN to get onto American Netflix, or a proxy to peruse certain eye-patch clad torrent websites. Never, I’m sure!

The concern that any sort of default Internet filter will inevitably also block access to other content is not an unfounded one. Mobile operators such as Orange and T-Mobile have already blocked sites under categories headed ‘Chat’ and ‘Forums’ from their service without an explicit indication that you want to gain access – something that you often cannot obtain until you have been a customer for 6 months or longer. Nobody should have to submit their name to a database with tick-boxes against the categories of content they have chosen to view, or what information they want to exchange, and that is a realistic consequence of these proposals.

This fundamentally isn’t about pornography, and to suggest that those who question a blanket, State-mandated Internet filter are advocating free and unfettered access to ‘material depicting rape and child abuse’ is at best disingenuous, and dangerously mis-informed.

Yet another badly thought out, technologically incompetent piece of legislation (if ISPs are not pressured into this ‘voluntarily’) will do nothing to protect children, nothing to stop the spread of illegal material, and only serve to further squeeze the freedom to communicate and disseminate information online.