When will the European Union order Twitter to silence President Trump?

Episode 282 of the Cyberlaw Podcast

Today's episode opens with coverage of a truly disturbing bit of neocolonialist lawmaking from the Court of Justice of the European Union. The CJEU ruled that an Austrian court correctly ordered Facebook to take down statements about an Austrian politician, not just in Austria, not just in Europe, but everywhere in the world. Called an "oaf" and a "fascist," the politician more or less proved the truth of the accusations by suing to keep that and similar statements off Facebook worldwide. I suggest that the US adopt blocking legislation to protect the First Amendment from foreign government interference and argue that President Trump should support such a law. After all, if he were ever to insult a European politician on Twitter, this ruling could lead to litigation that takes his Twitter account off the air. Heading off that threat is truly a legislative and international agenda for the Age of Trump! 

Nick Weaver returns to the podcast and gives the FDA a better report card than I expected on its approach to cybersecurity. But we agree that the state of medical device and implant security remains parlous. 

I try my hand at explaining the DC Circuit's Net Neutrality ruling in Mozilla v. FCC. There are still some rounds to be played, but Net Neutrality, if not dead, may at least be pining for the fjords (or a Democratic administration).

We introduce a new feature: This Week in Elizabeth Warren. She has a plan to revive the Congressional Office of Technology Assessment. Nick likes the idea. I'm less enthusiastic, perhaps because I actually did some work for OTA before it disappeared.

Nick also helps unpack the flap over Google's proposal to do DNS-over-HTTPS, and why ISPs aren't happy about it. Bottom line: If you haven't been paying much attention to the issue, you made the right choice. Nick explains why. Just think of how much time you saved by listening to the podcast!

Nick also explains how Uzbekistan managed to give state cyberattacks an aura, not of menace or invincibility, but of clownish incompetence.

David Kris tells us why privacy advocates and NGOs object to the French government's use of nationwide facial recognition for its ID program. If that's the best they can do, I suggest, this may be the dumbest face recognition privacy "scandal" in history.

The cops have shut down a Dark Web data center operating from… a NATO bunker? Nick reveals that the main reason to operate from a NATO bunker is, well, marketing. 

Apparently channeling Stewart Baker, Attorney General Bill Barr is all-in on discouraging mass-market warrant-proof encryption. Nick thinks he's picked the wrong fight and should go after phone storage encryption instead. And maybe Nick's right, since the civil-liberties shine on Apple is looking a little scuffed these days. 

David tells us that NSA has launched a new defense directorate with Anne Neuberger at its helm. I promise to interview her on the podcast early next year.

David talks about the California man charged with delivering classified information to China's Ministry of State Security. I want to know how many spies China has in the US if they can create what amounts to Uber for dead drops.

Dog bites man: Pervy Yahoo engineer pleads guilty to hacking emails for pornographic images. I'm surprised this doesn't happen every month. 

And in a sign that Congress can still reach bipartisan agreement on bills that do more or less nothing, both the House and the Senate have adopted bills authorizing (but not funding) DHS "cyber hunt" teams to help local governments suffering from cyber ransom and other attacks.

Bringing back an old favorite theme, I cover the hacking of an electronic billboard to play porn – and celebrate the crowdsourcing of the facial recognition needed to identify the actresses. (At least I think it was face recognition.) Tracked down and asked for comment, one actress urged her involuntary viewers to "keep both hands on the wheel."

Download the 281st Episode (mp3).

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Comments

[Martinned]

I know that I'm wasting my breath, but let me emphasise that it's not the EU doing this, but Austria. The EU court simply said that the relevant EU law does not prevent Austria from issuing worldwide injunctions against speech that is prohibited under Austrian law (in this case: defamation) that an Austrian court properly has jurisdiction over.

If Trump defames someone in Austria, as he well might, the victim will be able to take advantage of this holding too. (But only for the specific statement, obviously.)

[Martinned]

P.S. I recommend this blog post for further discussion of the judgment: http://eulawanalysis.blogspot.com/2019/10/facebooks-liability-for-defamatory.html

[Brett Bellmore]

So, if a company that has no assets in Austria refuses to comply with a worldwide injunction from there, it will suffer no consequences in the rest of the EU?

If that's not what you're saying, I really don't see that you have a point.

[Martinned]

There are rules about international private law that allow you to take a court judgment from one country and get it enforced in another. That's why Chevron spent the last decade going around the world telling people how bad the Ecuadorian courts are.

Some of those international private law rules about enforcement of judgments are EU law. For example, there is Regulation (EU) No 1215/2012. But those EU regulations have a history in normal treaty law, and continue to co-exist with treaties that both the EU, its member states, and non-members are party to.

https://en.wikipedia.org/wiki/Brussels_Regime

While (predictably) the US isn't a party to most of those treaties, it is typically possible to enforce a foreign judgment in US court under state law. (Specifically in the area of defamation there is also the Federal Speech Act of 2010, which limits enforceability to foreign judgments that are consistent with the 1st amendment.)

So if a company that has no assets in Austria refuses to comply with a worldwide injunction from there, it will suffer consequences in all sorts of places, including quite possibly in the US. I'm not sure what that has to do with anything, though.

[Brett Bellmore]

What it has to do with is the irrelevance of stating that it's not the EU doing this, it's Austria. Without the EU's cooperation, nobody would care about Austria issuing worldwide injunctions against free speech taking place outside of Austria.

The EU is Austria's co-conspirator in this attack on freedom of speech.

[Martinned]

Without the EU, there would be lots of other ways of getting Austrian court judgments enforced in foreign courts, as there are now.

[Brett Bellmore]

Without the EU, there wouldn't be very effective ways of getting Austrian censorship court judgments enforced in the US, and that's what we're concerned about here.

[Martinned]

Lawsuits against defamation aren't censorship.

[Krayt]

Ordering it hidden is.

[Martinned]

What else do you think a defamation lawsuit is? The whole point of suing someone for libel is to get them to stop publishing falsehoods about you!

[Brett Bellmore]

This doesn't just apply to speech by a party in the suit. It applies to similar speech by anybody that FB is capable of taking down. It would seemingly mandate that FB take down even a discussion of this controversy, if it included a full description of the statements found defamatory, even if it takes place outside the jurisdiction of the court.

I'd call that censorship.

[Martinned]

The judgment is a bit unclear on this point, but it clearly doesn't require Facebook to do its own searches for equivalent statements. But yes, the court is entitled to ban the publication of a statement it has found is defamatory. Like I said, that's the whole point of bringing a defamation case.

[Brett Bellmore]

It doesn't work that way in the US. That's what we're discussing, the lesser protection of speech in other countries seeping into the US via international regulation of multinational platforms.

[Bob from Ohio]

"it’s not the EU doing this, but Austria"

A distinction without a difference. The EU court is approving it and its Austria's EU membership which gives any power to its silly orders.

[gormadoc]

You're definitely wasting your breath, but only because nobody said the EU is doing it. However, they are sanctioning the global takedown, which does mean they are condoning the erosion of free speech on the internet.

[Martinned]

Nobody except Stewart Baker in the very title of this blog post. (And at least half the commenters in this thread.)

[jubulent]

I'm still not sure how you deal with foreign jurisdictions that don't have free speech laws (e.g. the European Union) mandating that multinational countries act in a certain manner as a condition of doing business there.

Even if the US adopts blocking legislation, the EU can refuse to permit Facebook to operate within its borders. If the US were to prohibit Facebook from enforcing a foreign judgment then it runs into First Amendment problems from the other side.

Certainly not an easy problem to solve.

[Brett Bellmore]

You deal with it by avoiding having multinational companies.

[Rossami]

re: "If the US were to prohibit Facebook from enforcing a foreign judgment then it runs into First Amendment problems from the other side."

Not following your logic here. Consider - if slavery were still legal in East Absurdistan and you got a judgement there forcing me into custody, do you think US courts would require more than a second's thought to reject your demand to enforce that judgement?

[Brett Bellmore]

Under US 1st amendment law, FB is legally entitled to "voluntarily" comply with foreign censorship demands, even if they can't be enforced under US law. Complying can't be prohibited, either, because the compliance is a 1st amendment act.

By contrast, slavery isn't just not mandated in the US, it's prohibited.

[Rossami]

I see. That's a stronger interpretation of "enforcing a foreign judgement" than I took from jubulent's original comment.

I see the argument that the US cannot stop Facebook from "voluntarily" complying with East Absurdistan's censorship but I don't see any problem with a law that said something like "East Absurdistan's judgements which conflict with the US First Amendment shall be given no force of law or deference in any US court." That wouldn't stop Facebook from voluntarily complying but it would take away much of the foreign plaintiff's ability to compel compliance.

[Brett Bellmore]

It would only take that away in so far as Facebook didn't have assets within the reach of East Absurdistan's courts, or any courts allied with East Absurdistan. You know, like maybe the EU?

The basic problem free societies face in regards to multinationals, is that these companies are hostage to the demands of the least freedom respecting jurisdiction in which they have significant assets. And they are seldom run by people sufficiently devoted to liberty to be willing to take a major hit to defend it.

I wasn't joking when I said above that the way you avoid this problem is by not depending on multi-nationals.

[jubulent]

Thanks, you’re exactly right. I suppose I should have fleshed that out better.

I’m starting to appreciate your opposition to multinationals, although I’m not sure I am there yet.

[Martinned]

It's cute that you think that the US has free speech laws but Europe doesn't.

https://en.wikipedia.org/wiki/Morse_v._Frederick

[Martinned]

Yes, America has the best free speech!

https://reason.com/2019/10/08/maine-state-police-denied-p-i-license-because-of-his-social-media-posts-about-state-police-lieutenant/

[Rossami]

If "Bong Hits 4 Jesus" is the best argument you've got to attack the US's position on free speech, we're in a pretty good place. I disagree with that decision but even it was very narrowly defined. Critical to that decision were the finding that it was a student, at a school event, promoting illegal drug use. Given those findings, it's a very narrow infringement on free speech. Not perfect but better than pretty much anyone else.

Note that the Maine PI article (below) explicitly notes that so far, the state has lost their case for censorship. I would have liked an even clearer loss for the attempted censors but that case outcome is also still far better than you'd get anywhere else.

[Martinned]

Bong Hits 4 Jesus is one of the more entertaining one, and a good example of how all of this 1st amendment sanctimony goes out the window as soon as someone shouts "Can Someone Please Think Of The Children!" (See also: obscenity, e.g. George Carlin going to jail for swearing in a routine about censorship.)

As for the Main PI article, if you read through to the bottom you'll see that the court didn't dispute the principle that it's OK to deny someone a PI licence (why do you need a licence for that in the first place???) for making knowingly or recklessly false statements, which doesn't strike me as the kind of thing the ECtHR would countenance.

[gormadoc]

MD PIs have the ability to apprehend people that other people do not. They can act essentially as bounty hunters, but other people don't have the legal right to do so, as otherwise the necessary rights are reserved for police.

[Martinned]

Thanks. That sounds like a whole separate conversation.

[jubulent]

There are limits on free speech in the US. There are significantly broader limits on free speech in the EU.

[Martinned]

There are different limits on free speech in the EU. Whether they are broader depends on what you're used to.

[Martinned]

P.S. I didn't even get into the whole horizontal effect issue. US legal culture traditionally worries about the vertical effect of human rights only, while European countries (as well as the ECJ and the ECtHR) worry about horizontal effects as well, to a greater or lesser extent.

In the first amendment context, that gets you into conversations about whether an employer should be able to fire (or decline to hire) someone because of what they said (or because of their religion). It is also the logic of privacy/data protection law: it protects individuals against other individuals, rather than myopically focusing on state action only.

[Krayt]

If the EU hassles facebook because they don't censor worldwide, including in the US, it becomes the job of our elected officials to swing the weight of the US to twist EU arms until they start breaking.

As with the high seas, international Internet should be free, with a Pax Americana.

[Martinned]

So you think people who are defamed on the internet should have to sue in every country in the world separately? Or should they simply sue in the US and then have the American judgment enforced worldwide? (Just trying to gauge how far you're willing to go with this American exceptionalism bullsh*t.)

[KHP54]

(Just trying to gauge how far you’re willing to go with this American exceptionalism bullsh*t.)

As far as it takes.

[Rossami]

On First Amendment issues? All the way. America really is exceptional on that point. And this very case proves how bad even other "civilized" jurisdictions are. Glawischnig-Piesczek should have been laughed out of court. Truth is (and legally should be) an absolute defense. And as the article above points out, "Called an 'oaf' and a 'fascist,' the politician more or less proved the truth of the accusations by suing to keep that and similar statements off Facebook worldwide."

[Martinned]

Truth is an absolute defense in every jurisdiction I am familiar with.

I don't know how to find the original Austrian judgment online, and I can't be bothered to google it, but the ECJ summarises it as follows:

17 The Handelsgericht Wien (Commercial Court, Vienna) and the Oberlandesgericht Wien (Higher Regional Court, Vienna) based their decisions on Paragraph 78 of the Law on copyright and Paragraph 1330 of the General Civil Code, on the ground, inter alia, that the published comment contained statements which were excessively harmful to the reputation of Ms Glawischnig-Piesczek and, in addition, gave the impression that she was involved in unlawful conduct, without providing the slightest evidence in that regard.

(emphasis added)

[gormadoc]

That reasoning wouldn't fly here. Free speech score: US 1, EU 0.

I'm not sure arguing that this takedown is lawful actually bolsters your idea that the EU has protections on free speech as good as the US. It seems to, in fact, hinder it.

[Brett Bellmore]

Just the impression? That wouldn't give you squat in the way of defamation in the US, you'd need an explicit statement to that effect.

[JesseAz]

So europed right to be forgotten which has been used to remove even truthful articles doesnt exist in your world?

[Martinned]

The right to be forgotten is an entirely different issue, based in privacy/data protection law. This case is about defamation.

[Toranth]

Name a country with better free speech protections than the United States.

[Martinned]

Germany

[Brett Bellmore]

Certainly doesn't look like it to me. I mean, claiming Germany has better free speech than the US, when religious advertisements are illegal?

A country with a secret list of censored websites?

[Toranth]

Wow, that is silly.

Just to give some quick examples, Germany regularly punishes people for satire and parody.
Germany regularly bans or restricts public presentations - or even just symbols - of faith.
Germany implements 'hate speech' laws that are vague and unpredictable, but curiously seem to include support for policies opposite to the current government. These laws extend to "insult" and "blasphemy" (!) and a frequently used to silence critics.
Germany often prevents people from discussing accused criminals, or past criminal records, even when true and relevant.
Germany implements severe restrictions on advertising, flat out banning many sorts and even restricting political campaigning to only approved times, places, and methods.

All in all, Germany has shown little interest in free speech, instead having chosen to suppress speech in favor of "human dignity" as their "supreme constitutional value".

So, no. Germany is in no way shape or form a nation with better protections for Freedom of Speech than the US.

[jubulent]

Have you been reading Prof. Volokh’s posts on these sorts of anti-libel injunctions? They are very relevant to the subject.

[KHP54]

"Just think of how much time you saved by listening to the podcast!"

No, actually, I won't spend any of my time thinking about that. Sorry.

Now, give me a transcript and I'll gladly be your first subscriber! We'd be talking about actual time savings then...

[KHP54]

As far as encryption goes: absolutely I want warrant-proof/deniable/whatever encryption against the state. What reasonable person wouldn't?

Taking a big-picture approach, what is it about a mere accident (the fact that wire-based analog telegraph and voice transmission) was easily amenable to hard-to-detect wiretapping means that we need to preserve this aspect in every future means of communication? Bleah to the state-fellators on this one; remind us again of the #1 cause of violent death in the 20th Century? (Answer for the unobservant: governments acting against their own citizens.)

[Krayt]

Our politicians lament crimes while billions around the world feel the boot stamping on their human faces, forever, press down a little more firmly.

[KHP54]

Yeah, think of Tom Friedman's admiration of the Chinese. Too many of ours (and their lackeys) look with wistfulness, wishing they could be among the boot-stompers.

[Brett Bellmore]

That's why the US can't raise an effective defense against the gradual spread of this sort of thing: Too many in our government envy this power, and hope to bring it here in time.