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June 2021
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Amazon's Idea For A Mesh Network Is Cool; It's Method Of Rolling It Out Is Not

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Over the weekend there was a bit of a reasonable fuss raised after Ars Technica noted that all of the various Amazon connected devices (including Alexa, Echo, Ring, etc.) would become part of a mesh network called Amazon Sidewalk, in which the devices would be sharing a tiny tiny bit of bandwidth across the network of devices. The idea behind the mesh network is kind of cool, and there are some clear benefits to using it.But, of course, this is Amazon we're talking about -- a giant company, and the method of rolling this out seems to have caught a ton of people by surprise: namely opting everyone into the program with a short timeline to opt-out. That seems less than ideal. Lots of privacy folks are concerned, in general, with two aspects of this: the fact that people may be suddenly sharing data with their neighbors without necessarily realizing it, and the tie-in to Amazon, which is (again) a large company that tends to collect quite a bit of data on people. To its credit, Amazon released a pretty comprehensive whitepaper exploring the privacy and security protections they've built in to Sidewalk, and my guess is that for many consumers the benefits of easier setup and better connectivity via Sidewalk will seem worth it to them.The real issue, then, is forcing everyone into the network. Obviously, it's no surprise why this was done. A mesh network really only works if you have enough nodes on the network to make it useful. So it makes sense that Amazon would want as many of the devices to be on the network on day one as possible. However, given the company and the public scrutiny it has received of late, it seems like it should have anticipated these concerns a lot more, pushed for an opt-in setup (perhaps with incentives), rather than jumping to the "hey, we're adding this automatically" approach.While it's possible that Amazon is betting that the concerns over this will blow over, and having so many nodes on the network will make it worthwhile to take the short-term heat, it still surprises me that the big internet companies don't take more steps to alleviate these kinds of concerns up front, including taking a more cautious approach. But, perhaps that's why I don't run a giant internet company.

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posted at: 12:00am on 02-Jun-2021
path: /Policy | permalink | edit (requires password)

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Are Partial Liability Rules The Path Forward For Intermediary Liability Regimes? Lessons Learned From Brazil

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The past year saw theInternet become a lifeline during the COVID-19 pandemic. But 2020also saw increased scrutiny of online content moderation, regulationof platforms and their effects on society. While recent headlineshave focused heavily on social media platforms, the conversation ismuch more complex: the future of the Internet as we know it dependson discussions and policies regarding intermediary liability -- thelegal rule that platforms should not be liable for the content postedby their users.Section 230 reform inthe U.S. and the proposed DSA and DMA in the European Union aredriving a new era of intermediary liability rule-making, and othercountries have followed suit: India recently updated guidelinesapplicable to intermediaries, and Mexico is discussing how to ensurefreedom of expression in social media platforms. Instead of lettingthe U.S. and Europe influence these debates, governments around theworld can learn important lessons from Brazil.With approximately 145million Internet users, Brazil has a large and growing digitaleconomy. There are around 10,000 ISPs operating in the country,broadband Internet is available to almost 90% of the population, andthe country's Internet Exchange Point, IX.br, is one of thelargest in the world. Brazil also has a strong tradition of Internetgovernance and policy. Since 1995, the country's"Multistakeholder Internet Steering Committee" (CGI.br)has provided technology and policy recommendations to stakeholdergroups to leverage the full potential of the Internet. In 2014, thecountry adopted an "Internet Bill of Rights,"which establishes rights and duties of individual and corporateusers, businesses and the government.Brazil has long been apioneer in sound Internet policies and regulation and holds one ofthe most influential laws regarding intermediary liability not onlyin Latin America, but the world. The Brazilian "Marco Civil daInternet", or Civil Rights Framework for the Internet, which wasapproved in 2014, introduced an intermediary liability regime builtupon almost two decades of practice and jurisprudence in the U.S.around CDA'sSection 230.However, Brazil decidedto deviate from the path enshrined in the 1996 U.S. legal order. TheMarco Civil law grants full immunity from liability to Internetaccess providers and clearly indicates that Internet infrastructureshould not be affected by issues pertaining to the upper layers(i.e., applications layer) of the network. This law adopts arestricted and residual approach: Internet application providers areonly held liable for third-party content in instances where they failto comply with specific judicial orders to render certain contentunavailable. As a general rule, private notice and take downnotifications are not accepted as a means to trigger the liabilitysystem comprised in the Marco Civil. The rule however does not applyto non-consensual dissemination of intimate images and mattersaffecting intellectual property - the latter being subject to aspecialized regime.Perhaps the mostimportant difference between Marco Civil and Section 230 is thatBrazil has deliberately decided not to copy the "Good Samaritan"clause, meaning that the 'protection' provided by theMarco Civil in Article 19 does not grant any immunity to contentmoderation practices adopted by Internet application providers.While the U.S. systemencompasses ante-hoc immunity for liability from third-party contentand also for a company's own good-faith behavior vis--vis itsusers, the Brazilian system covers only third-party content. InBrazil, there is no ante-hoc immunity whatsoever for harms caused bythe decisions and measures taken by Internet application providers.For instance, Google was recently forced to pay compensation for"authenticante-hoc censorship" when it applied its termsof service to remove videos from a Civil Society organization'sYouTube channel. What in the U.S. would be solved by the applicationof the "Good Samaritan" clause, in Brazil had a differentoutcome.Why should we careabout Brazil's Marco Civil and why now? Around 90% of Internetusers are outside the U.S. and the narrow application of the Section230, as well as the full immunities it grants, might no longer workto guide Internet policy development elsewhere (especiallyconsidering the complex and diverse discussions related to the scopeof Freedom of Speech). Also, the various proposed reforms to Section230 in the U.S. have spilled over to other countries in verydangerous ways, including in Brazil. In their fight against Big Tech,some politicians in Brazil -emulating the behavior of US politicians-have proposed to suppress immunities that do not really exist in ourlegal order (as our overarching liability regime already coversissues such as the wrongful suppression of content by applicationproviders). So, in addition to being a waste of time, these attemptsare counterproductive as the country could take steps backward inInternet policy and regulation. .The partialintermediary liability adopted by the Brazilian Marco Civil createdobstacles for extrajudicial requests for content removal thatthroughout the 2000s helped foster legal uncertainty and very littletransparency and accountability from platforms. By granting Internetapplications with immunity solely for third-party behavior andcontent (and not for their own behavior and practices), Marco Civilcontributed to increased legal predictability and fostered innovationin Brazil, as shown in by astudy commissioned by the Internet Society.The current landscapeof platform and intermediary liability rulemaking marks an ethoschange from previous decades. In the past, it was imperative toavoid regulating or harming the Internet through overregulation.Today regulation is no longer a taboo. However, regulation must bewise, principled-based and aimed at the correct target in the complexdigital ecosystem.Regulatorsmust resist adopting policies thatpenalize the behavior of social media platforms asthey ultimately punish all users whopost content on these platforms.Rules aimed at social media platforms will end up impactingother types of applications for the mere fact that they operate onthe same layer of the Internet. Any regulation that forces Internetinfrastructure providers to enter the business of content moderationwould be dangerous. The consequences for freedom of expression,innovation and a dynamic digital economy would be significant.How governments decideto address intermediary liability in the near future is critical forusers and for the Internet. We face a critical juncture where we caneither get this right or get it wrong. Learningfrom Brazil's Marco Civil law is a step in the right direction.Bruna Martins dosSantos is Advocacy Coordinatorfor DataPrivacy Brazil Research and DiegoCanabarro is Senior Policy Manager for the InternetSociety.

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posted at: 12:00am on 02-Jun-2021
path: /Policy | permalink | edit (requires password)

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