Talk delivered at European University Florence, March 2012. Did the Aran spring really prove that social media enables the flowering of democracy or are social media in fact easy venues for blanket state surveillance? Can they be arenas for free speech when platforms likeTwitter are refining their censorship policies to avoid legal risk?

1. Social media, activism and
democracy : friend or foe?
LILIAN EDWARDS
PROF OF E-GOVERNANCE
STRATHCLYDE LAW SCHOOL
MARCH 2012
LILIAN.EDWARDS@STRATH.AC.UK
PANGLOSS:
HTTP://BLOGSCRIPT.BLOGSPOT.COM
@LILIANEDWARDS

2. Summary
 The myth of social media as the ally of activism, free
speech and democracy – Clay Shirky, 2008 –
―techno utopianism‖
 Vs
 1. Twitter’s ―censorship‖ policy announced Jan 2012
 2. The London riots summer 2011 and state
surveillance of social media
 3. The Wikileaks takedowns of late 2010 – private
intermediary activity

3. ―Friend‖ : Arab Spring 2011

4. Social media and the Arab Spring
• Doubts? – Evgeney Morozow, Tor

6. ―Foe‖: Do social media actually enable/ reinforce
state control?
 Obvious examples of state control: Great Chinese
Firewall
 Freedom of the Net Survey 2011 of 37 countries cites
 Increased web blocking
 Filtering and content manipulation
 Cyber attacks (DDOS)
 Coercion of website owners, punishment of ordinary users
 Egypt ―internet kill switch‖ – January 2011; Syria, June
2011; Bahrain, deliberate slowing of net
 Issues: bottlenecks to net (4/5 Egyptian major ISPs),
economic costs – OECD estimate 5 day Egypt block cost
$90m (Feb 11)
 State sponsored spin – China, US, Russia..

7. UK use of social media?

8. AND –Twitter, Jan 26 2012
 ―Starting today, we give ourselves the ability to reactively
withhold content from users in a specific country — while
keeping it available in the rest of the world. We have also
built in a way to communicate transparently to users
when content is withheld, and why.‖
 Transparency – notice to tweeter if possible, Chilling
Effects Clearinghouse, content marked
 On what authority? Court order? Notice from private
body? ―authorised body‖?
 What if Egypt had requested all tweets re Tahrir Sq
banned? ―…we will enter countries that have different
ideas about the contours of freedom of expression. Some
differ so much from our ideas that we will not be able to
exist there.‖ ??

9. 1. Social media as surveillance tool
 Summer riots in London and rest of England
 12,000 arrests in London, C 1400 persons prosecuted
& sentenced in UK
 Over half 20 or under, ¼ under 17, 43% of juveniles
no previous criminal record, main offence burglary not
violence
 Sentences over twice as serious as would be normal for
offence
 ―In my judgement the context in which the offences of
the night of 9th August were committed takes them
completely outside the usual context of criminality. ―
 2 jailed for 4 years for inciting riots via FB pages - even
tho no riot ensued (Blackshaw/Sutcliffe)

10. Technology sur(?)veillance & its legality?
 Surveillance of “walls” and profiles on social
networking sites – evidence extensively used in
the trials from FB, Twitter
 Surveillance via hashtags eg #Ukuncut
 Face recognition technology to match rioters to FB pages
and vice versa? (cf Acquisti et al work, 2011 identified
1/3 by matching pic taken outside to FB pic - > real
name etc)
 Use of fake profiles to ―Friend‖ suspects & get data?
 ―Interception‖ and ―decrypting‖ of encrypted texts sent
on Blackberry Message (BBM) network.
 RIM ―engaged with authorities‖ – voluntarily searched
db and decrypted results? By keywords eg ―riots‖?

12. LONDON RIOTS , Summer 2011
"Everyone from all sides of London meet up at the heart of
London (central) OXFORD CIRCUS!!, Bare SHOPS are gonna
get smashed up so come get some (free stuff!!!) fuck the feds
we will send them back with OUR riot! >:O Dead the ends and
colour war for now so if you see a brother... SALUT! if you see
a fed... SHOOT!―
Blackberry Message (BBM)

13. Legal controls over surveillance of SNS posts?
 ―Of course‖ police can surveille public posts - they’re
public!
vs
 Bartow ―Facebook [is] a giant surveillance tool, no
warrant required, which the government can use in a
mind bogglingly creative range of ways with almost no
practical constraints from existing laws‖
 (review Semitsu 31 Pace L Rev 291)
 Why? US - No reasonable expectation of privacy -
established acceptance of evidence in crime,
matrimonial, insurance, employment etc litigation
 -> No Fourth Amendment anti-search rights
 No general US privacy law.. No DP..

14. Legal controls – UK? - 1
 SNS profile data clearly personal data, possibly
sensitive personal data - > ―explicit consent‖
 Data Protection Act 1998 – strict controls on
collecting/processing data without consent
 BUT – s29 DPA – exempts personal data where
processed for prevention or detection of crime
 How often will this not be invocable re activism?
 And DPA Sched 3 r 5 – consent NOT required even
to processing SPD where data ―has been made public
as a result of steps deliberately taken by data subject‖

15. Legal controls – UK? - 2
 Regulation of Investigatory Powers Act – RIPA 2000
– UK attempt to ―art 8 proof‖ police interceptions etc
after ECtHR criticism
 O’Floinn and Ormerod 2011 Crim LR 766 argue
repeated surveillance or monitoring of public FB
profile could be ―direct surveillance‖ ->
authorisation needed
 Especially if data also recorded and systematically
processed eg data mined & profiled

16. RIPA & SNS monitoring as ―direct surveillance‖
 DS needs to be : covert but not intrusive; likely to
result in obtaining ―private information ― re person;
aimed at specific person, investigation not just
general monitoring
 Covert: What is user expectation re public profile?
That police will/may read it? Once? More than once?
Record it?
 Cf privacy in public – von Hannover ECHR case
 Is the info “private‖? S26 (10) ―includes any
information relating to his private or family life‖
 Investigation? #UKuncut or %―Start a riot‖– not
―Jordan Blackshaw‖

17. Interim conclusions
 Privacy protections designed to implement art 8 of ECHR
don’t map well to a world of semi-public semi-private SNS
posts
 Activism use of SNSs is unlikely to be Friends Only? If
purpose is to gain support.
 ―Private info‖ online is searchable, identifiable (via SNS/ISP
etc), recordable, able to be profiled and connectable to ―real
world‖ via face recogn
 Wide DP exemptions re crime can be (and are) easily
extended / abused (might Draft EC Directive 2012 on police
and DP help?)
 Regulation has thought about sur-veillance – Panopticonism
– not sous- or co-veillance..? (Brin, Mann)

18. 2. Online free speech and privatised censorship – the
Wikileaks affair
 28 Nov 2010: ―patriot‖ DDoS attack hits WikiLeaks as first set
of US diplomatic cables is published.
 3 December 2010: Amazon Web Services stops hosting
Wikileaks, citing ToS; hit by DDOS attacks
 3 December 2010: WikiLeaks.org ceases to work for web users
after everyDNS.com claims DDOS attacks against WikiLeaks
were disrupting its service provided to other customers.
 4 December 2010: PayPal permanently restricts
account used by WikiLeaks (later, M/card, Visa,
Postfinance)
 8 December 2010: DDoS attacks take down PayPal, Visa,
Mastercard, ―Anonymous‖ /Operation Payback claims
responsibility, using LOIC to create DoS attacks
 13 December 2010 : Amazon in Europe goes down for 30 mins
- denies DDOS cause

19. Anonymous’s grounds for ―censorship‖
 "We're against  The First Great Infowar?
corporations and
government interfering on
the internet," Coldblood
added. "We believe it
should be open and free for
everyone. Governments
shouldn't try to censor
because they don't agree
with it‖.
 Guardian 8 December
 But DDOS is criminal in
most jurisdcitions

20. AWS’s grounds for ―censorship‖
 AWS: ― ―you represent and warrant that you own or
otherwise control all of the rights to the content… that
use of the content you supply does not violate this policy
and will not cause injury to any person or entity.‖ It’s
clear that WikiLeaks doesn’t own or otherwise control all
the rights to this classified content. ―
 = copyright infringement argument.
 Notice -> liability as publisher (DMCA) unless takedown
 But in US government documents are free of copyright ?
(cf UK)
 AWS retain discretion to interpret T of S and probably
further discretion.

21. Intermediary legal risks as hosts
 Should Amazon have taken down Wikileaks?
 Possible criminal liability as publisher under US Espionage Act
 Possible civil liability: copyright documents? (tho under US
law , probably not); trade secrets?
 Libel?
 Protection? S 230 © CDA does not cover criminal liability. (In
EU, ECD protection vanishes on notice to take down.)
 Risks to revenues/shareholders
 Risks to staff/CEA including jail
 PR risks , loss of goodwill – much opposition to Wikileaks in
US, collateral damage from DDOS
 Yet in Europe..
 ―if you don’t support freedom of expression, why are you
selling books?‖

22. So what did happen to Wikileaks?
"Suppose you are the proprietor of an information service. …The
information you provide is greatly upsetting to powerful people
who would prefer to keep it a secret. You have been charged
with no crime, much less convicted of one. But one day, you
discover that all of these payment systems – quite
obviously responding to pressure from the government
but citing no actual legal authority – are refusing to
accept money from your customers on your behalf.
This, sadly, is not a supposition. It is nearly the precise
situation that WikiLeaks has encountered since late last year..
forcing the whistleblowing media operation to suspend all
activity except fundraising in a struggle merely to survive… …if
this was happening to any traditional media company, it would
be a scandal, and the media in general would be screaming
about the threat to free speech it represented.
 Dan Gilmore, Guardian, Oct 24 2o11

23. Wikileaks March 2012
 ―WikiLeaks: 463 days of banking blockade - no
process
Assange: 460 days detainment - no charge
Manning: 657 days in jail - no trial‖
 ―We are forced to put all our efforts into raising
funds to ensure our economic survival. For almost a
year we have been fighting an unlawful financial
blockade. We cannot allow giant US finance
companies to decide how the whole world votes with
its pocket.‖

24. More interim thoughts
 Who was the corporate social responsibility of AWS owed
to? To their users? Shareholders? The public? ―Freedom of
speech?‖
 Are Internet host/cloud intermediaries in any way
comparable in ethics to traditional publishing
intermediaries like newspapers – ―publish and be damned‖
– responsible journalism?
 Search intermediaries? Get site blocked on Google =
disappears. Being attempted by © lobby also. Google does
maintain Transparency Report re govt (and court order)
take downs etc.
 Even less traditionally ethical – payment intermediaries

25. Overall conclusion…
 Naughton , Guardian 26 Feb 2012
 ―Facebook is now a semi-public space in which political
and other potentially controversial views are expressed.
Amazon is well on its way to becoming a dominant
publisher. Google has the power to render any website
effectively invisible. Given that freedom of speech is
important for democracy, that means that these giant
companies are now effectively part of our political
system. But the power they wield is, as Stanley Baldwin
famously observed of the British popular press in the
1920s, "the harlot's prerogative" – power without
responsibility.‖

26. Solutions?
 Corporate social responsibility and ethical frameworks? re
online intermediaries – Global Network Initiative, inc
Google, M$, Yahoo!; EC working with IT industry on CSR
but not re freedom of speech.
 International rules on immunity. US hosts have CDA s
230© total immunity re publication torts (though not
crime or ©). EC hosts are fully liable on notice , hence
―Notice and Take Down ‖ (NTD) paradigm.
 International Internet Bills of Rights re freedom of speech
online? IGF; CoE work. ECHR unhelpful. Brown and Korpff
call for less national margin of appreciation, more certitude
on ―horizontal effect‖, requirements of judicial warrant/
transparency for takedown.