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[liberationtech] Twitter May Censor Tweets in Individual Countries

Paul Bernal (LAW) Paul.Bernal at uea.ac.uk
Fri Jan 27 22:49:22 PST 2012


I'm a bit of a human rights lawyer, so here's my take on the human rights law side of things.

I'm afraid these kinds of 'get-out' clauses (protection of morals, national security etc), and the similar 'as necessary in a democratic society' clauses are present in almost all human rights law, with very, very few exceptions - the Convention Against Torture is the only exception that comes immediately to mind on a global scale, and even that is twisted by definitions of what constitutes 'torture', as many, many governments (not just the US) have demonstrated all too obviously, over the last few years particularly. The other 'absolute' I can remember is the prohibition of the death penalty in the European Convention on Human Rights, but that, of course, is just Europe.

It's an unfortunate but perhaps inevitable feature of international human right law - because if it wasn't there, very few states would sign the documents. As a result, they really do depend of the goodwill of the nations concerned, and when the crunch comes that goodwill can very rarely be relied upon.  Even when countries are proven to have breached their commitments under international conventions they're very, very hard to enforce - the pressure that can be put on is largely diplomatic, moral or through trade pressure. Force is a last resort - thankfully, given the record of most attempts to use force in recent years.

Personally I agree pretty much with Jillian - this move by Twitter is, for me, not as bad as it seems, and could in a way be seen as something that we can use to highlight censorship. At least they're being transparent about it.

Paul


Paul Bernal
Lecturer
UEA Law School
University of East Anglia
Norwich Research Park
Norwich NR4 7TJ

email: paul.bernal at uea.ac.uk<mailto:paul.bernal at uea.ac.uk>
Web: http://www.paulbernal.co.uk/
Blog: http://symbioticweb.blogspot.com/
Twitter: @paulbernalUK

On 28 Jan 2012, at 04:59, Jacob Appelbaum wrote:

On 01/28/2012 08:51 AM, Jillian C. York wrote:
With all due respect, Kate, it's not that simple.

First off, the UDHR does not stand alone. The International Covenant on
Civil and Political Rights provides that:

"The exercise of the rights provided for in paragraph 2 of this article
carries with it special duties and responsibilities. It may therefore be
subject to certain restrictions, but these shall only be such as are
provided by law and are necessary:

  - for respect of the rights or reputations of others;


  - for the protection of national security or of public order (ordre
  public), or of public health or morals."


As laid out last year by the UN Special Rapporteur on Freedom of Expression
Frank LaRue, any limitation to free expression must pass the following
tests:

(a)    It must be provided by law, which is clear and accessible to
everyone (principles of predictability and transparency); and
(b)    It must pursue one of the purposes set out in article 19, paragraph
3, of the Covenant, namely (i) to protect the rights or reputations of
others, or (ii) to protect national security or of public order, or of
public health or morals (principle of legitimacy); and
(c)    It must be proven as necessary and the least restrictive means
required to achieve the purported aim (principles of necessity and
proportionality).


The (ii) clause is pretty sad. I'm sure that Assad's Syria could make
some serious arguments under that clause, as could Saudi, as could well,
the Amish in Pennsylvania; so really, we're talking about a really low
bar here as (c) seems impossibly vague.


Assuming Twitter is to respond only to legitimate requests as laid out
above, they are not--as you claim--violating human rights.

I wish protections on free expression were stronger, but the sensationalism
I see emanating from this list--as well as the media--is just not helpful.


Transparency and accountability is important. It's not the whole picture
but it certainly allows people to direct their rage in the direction of
the source.

I think this action by Twitter and this discussion is an interesting but
perhaps totally predictable result of market centric capitalism. Twitter
wants to expand to cover the entire planet, anything less would be a
kind of market stagnation. No one in the valley or San Francisco, let
alone the world, wants to say "we're good, we've had enough growth" to
their investors or their users. Ok, some say it but it's exceedingly rare.

Twitter as a company, like any company, has to address the lowest common
denominator of law in the areas where they expand. If it's true that
they want to expand to the UK, I think we'll see further restrictions.
It's the libel tourism capital of the planet.

It seems extremely likely that Twitter will not expand into markets such
as Iran but rather, if Iranians use Twitter, they'll welcome it without
having to really deal with impacts from Iranian law. The result is that
censorship of the service will be a common problem. Dedicated users will
still get through but the censorship serves as a different kind of
market force. We'll also probably see very targeted attacks against
specific people as seemed to be the motivation with the attacks on
DigiNotar and Comodo.

I think censored Twitter users will have a very low bar for
circumvention because at the core - the Twitter database is supposedly
not redacted. I think that some of the DMCA requests did result in
removed content but I don't actually know for sure - perhaps their
general council will comment on that? That surely is a good thing but
it's far from the best thing in my view. However, it seems to
acknowledge that there is an objective truth of what existed at one
point. Some companies have decided that it is better to tell people they
can't show you the data than to simply erase it. That certainly is an
improvement. Still, it's a sad state of affairs for a lot of the
planet's population.

I wonder if Twitter will also have a global censorship and/or a so
called "lawful interception" map similar to the Google transparency[0]
report? I hope so and actually, given Twitter's record, I'd bet on it.
The work with Chilling Effects is a good start; perhaps they can
contribute to Wendy's project by creating a meta-transparency report...

All the best,
Jacob

[0] http://www.google.com/transparencyreport/
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