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Daphne Keller Oct 3
The CJEU's ruling in Glawischnig-Piesczek is out, and it is basically the worst case scenario. 1/
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Daphne Keller Oct 3
Replying to @daphnehk
EU Member State courts can order platforms to use automated filters to block “identical” or “equivalent” uploads. Orders can have global effect and suppress legal expression in other countries, unless Austrian courts find some other reason in national law to stay their hand. 2/
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Daphne Keller
TL;DR: It’s open season for courts to mandate made-up technology without knowing what that technology will do. And those mandates can apply to the whole world. 3/
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Daphne Keller Oct 3
Replying to @daphnehk
I wrote about the issues in the case here . 4/
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Daphne Keller Oct 3
Replying to @daphnehk
Aside from substance issues, there is a major process issue: this ruling affects billions of Facebook users, but they were not represented in court. Important legal arguments about their rights were simply not raised or considered. 5/
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Daphne Keller Oct 3
Replying to @daphnehk
I thought the ruling would provide some wordy but unclear guidance about when a court can order filters or global takedown. But it doesn’t even do that. 6/
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Daphne Keller Oct 3
Replying to @DanSvantesson
The section that OK’s global takedown (or at least says the law at issue here doesn’t bar them) in particular is almost comically short. Here's a screenshot. That's it! talks about that part here: 7/
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Daphne Keller Oct 3
Replying to @DanSvantesson
The filtering discussion though… Wow. Where to start? I’ll go with fundamental rights. 8/
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Daphne Keller Oct 3
Replying to @DanSvantesson
The CJEU has repeatedly said in the past that filtering or monitoring by platforms can harm users’ rights to privacy and to free expression/information. So have int'l human rights bodies. So has the ECtHR (re expression rights and strict platform liability). 9/
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Daphne Keller Oct 3
Replying to @DanSvantesson
Here, the Court does not even mention or consider those things. Its analysis only considers whether the filtering order might burden *Facebook*. (44, 46) Not a word about how the filter might affect the rights or interests of Facebook’s billions of users. 10/
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Daphne Keller Oct 3
Replying to @DanSvantesson
How might this affect other Facebook users? NO ONE KNOWS. We can’t, because it is entirely unclear what technology the court thinks Facebook is being ordered to build. I talk about the different technologies this order might cover at pp 19-23 here 11/
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Daphne Keller Oct 3
Replying to @DanSvantesson
Not knowing what technology this mandates is a huge problem. It makes assessing fundamental rights impact impossible. 12/
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Daphne Keller Oct 3
Replying to @DanSvantesson
Is this a filter that will block too much expression (hurting other users’ rights)? Too little (hurting the plaintiff’s)? A filter will specifically impact data protection or privacy interests? The court lacks any information to address those questions. 13/
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Daphne Keller Oct 3
Replying to @DanSvantesson
The court could have said "filters affect fundamental rights, and we can't assess that or balance the interests at stake without better facts, so here are factual questions for Member State courts to consider in filtering cases." Instead, just left rights out of its analysis. 14/
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Daphne Keller Oct 3
Replying to @DanSvantesson
This filter might, per the lower court, detect images of plaintiff paired with specific words. ⇨Ordering FB to do that means ordering FB to run biometric facial recognition scans on people who have nothing to do with this case, in a reported 300 million photo uploads daily.⇦15/
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Daphne Keller Oct 3
Replying to @DanSvantesson
It’s hard to overstate the privacy / data protection issues the filtering order will raise if it requires use of facial recognition technology. But apparently no one raised that point to the court. 16/
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Daphne Keller Oct 3
Replying to @DanSvantesson
For someone who tweets long threads a lot, I am remarkably bad at making the threading work. Tweets 17-23 in the thread are here
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Jeff Kosseff Oct 3
Replying to @daphnehk
Phew- I only saw this tweet and thought there was a new Section 230 decision out.
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Daphne Keller Oct 3
Replying to @jkosseff
In terms of practical impact I think this is worse. At least for speech on global platforms like Facebook. Even if they resist the formal extraterritorial enforcement of laws like this, the easiest thing is to comply "voluntarily" on a global basis.
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