EFF to Court: Young People Have First Amendment Rights
Utah cannot stifle young people’s First Amendment rights to use social media to speak about politics, create art, discuss religion, or to hear from other users discussing those topics, EFF argued in a brief filed this week.
EFF filed the brief in NetChoice v. Brown, a constitutional challenge to the Utah Minor Protection in Social Media Act. The law prohibits young people from speaking to anyone on social media outside of the users with whom they are connected or those users’ connections. It also requires social media services to make young people’s accounts invisible to anyone outside of that same subgroup of users. The law requires parents to consent before minors can change those default restrictions.
To implement these restrictions, the law requires a social media service to verify every user’s age so that it knows whether to apply those speech-restricting settings.
The law therefore burdens the First Amendment rights of both young people and adults, the friend-of-the-court brief argued. The ACLU, Freedom to Read Foundation, LGBT Technology Institute, TechFreedom, and Woodhull Freedom Foundation joined EFF on the brief.
Utah, like many states across the country, has sought to significantly restrict young people’s ability to use social media. But “Minors enjoy the same First Amendment right as adults to access and engage in protected speech on social media,” the brief argues. As the brief details, minors use social media for to express political opinions, create art, practice religion, and find community.
Utah cannot impose such a severe restriction on minors’ ability to speak and to hear from others on social media without violating the First Amendment. “Utah has effectively blocked minors from being able to speak to their communities and the larger world, frustrating the full exercise of their First Amendment rights,” the brief argues.
Moreover, the law “also violates the First Amendment rights of all social media users—minors and adults alike—because it requires every user to prove their age, and compromise their anonymity and privacy, before using social media.”
Requiring internet users to provide their ID or other proof of their age could block people from accessing lawful speech if they don’t have the right form of ID, the brief argues. And requiring users to identify themselves infringes on people’s right to be anonymous online. That may deter people from joining certain social media services or speaking on certain topics, as people often rely on anonymity to avoid retaliation for their speech.
Finally, requiring users to provide sensitive personal information increases their risk of future privacy and security invasions, the brief argues.
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Europe urged to revoke UK's data adequacy status
"A coalition of seven leading civil society organisations has called on the European Commission to revoke the United Kingdom's data adequacy status, citing what they describe as a sustained and systemic erosion of privacy and data protection standards in the UK."
Full article (paywall); read the original statement.
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Keeping the Web Up Under the Weight of AI Crawlers
If you run a site on the open web, chances are you've noticed a big increase in traffic over the past few months, whether or not your site has been getting more viewers, and you're not alone. Operators everywhere have observed a drastic increase in automated traffic—bots—and in most cases attribute much or all of this new traffic to AI companies.
BackgroundAI—in particular, Large Language Models (LLMs) and generative AI (genAI)—rely on compiling as much information from relevant sources (i.e., "texts written in English" or "photographs") as possible in order to build a functional and persuasive model that users will later interact with. While AI companies in part distinguish themselves by what data their models are trained on, possibly the greatest source of information—one freely available to all of us—is the open web.
To gather up all that data, companies and researchers use automated programs called scrapers (sometimes referred to by the more general term "bots") to "crawl" over the links available between various webpages and save the types of information they're tasked with as they go. Scrapers are tools with a long, and often beneficial, history: services like search engines, the Internet Archive, and all kinds of scientific research rely on them.
When scrapers are not deployed thoughtfully, however, they can contribute to higher hosting costs, lower performance, and even site outages, particularly when site operators see so many of them in operation at the same time. In the long run all this may lead to some sites shutting down rather than bearing the brunt of it.
For-profit AI companies must ensure they do not poison the well of the open web they rely on in a short-sighted rush for training data.
Bots: Read the RoomThere are existing best practices those who use scrapers should follow. When bots and their operators ignore these guideposts it sends a signal to site operators, sometimes explicitly, that they can or should cut off their access, impede performance, and in the worst case it may take a site down for all users. Some companies appear to follow these practices most of the time, but we see increasing reports and evidence of new bots that don't.
First, where possible, scrapers should follow instructions given in a site's robots.txt file, whether those are to back off to a certain crawling rate, exclude certain paths, or not to crawl the site at all.
Second, bots should send their requests with a clearly labeled User Agent string which indicates their operator, their purpose, and a means of contact.
Third, those running scrapers should provide a process for site operators to request back-offs, rate caps, exclusions, and to report problematic behavior via the means of contact info or response forms linked via the User Agent string.
Mitigations for Site OperatorsOf course, if you're running a website dealing with a flood of crawling traffic, waiting for those bots to change their behavior for the better might not be realistic. Here are a few suggested, if imperfect, mitigations based in part on our own sometimes frustrating experiences.
First, use a caching layer. In most cases a Content Delivery Network (CDN) or an "edge platform" (essentially a newer iteration of a CDN) can provide this for you, and some services offer a free tier for non-commercial users. There are also a number of great projects if you prefer to self-host. Some of the tools we've used for caching include varnish, memcached, and redis.
Second, convert to static content to prevent resource-intensive database reads. In some cases this may reduce the need for caching.
Third, use targeted rate limiting to slow down bots without taking your whole site down. But know this can get difficult when scrapers try to disguise themselves with misleading User Agent strings or by spreading a fleet of crawlers out across many IP addresses.
Other mitigations such as client-side validation (e.g. CAPTCHAs or proof-of-work) and fingerprinting carry privacy and usability trade-offs, and we warn against deploying them without careful forethought.
Where Do We Go From Here?To reiterate, whatever one's opinion of these particular AI tools, scraping itself is not the problem. Automated access is a fundamental technique of archivists, computer scientists, and everyday users that we hope is here to stay—as long as it can be done non-destructively. However, we realize that not all implementers will follow our suggestions for bots above, and that our mitigations are both technically advanced and incomplete.
Because we see so many bots operating for the same purpose at the same time, it seems there's an opportunity here to provide these automated data consumers with tailored data providers, removing the need for every AI company to scrape every website, seemingly, every day.
And on the operators' end, we hope to see more web-hosting and framework technology that is built with an awareness of these issues from day one, perhaps building in responses like just-in-time static content generation or dedicated endpoints for crawlers.
EFF to the FTC: DMCA Section 1201 Creates Anti-Competitive Regulatory Barriers
As part of multi-pronged effort towards deregulation, the Federal Trade Commission has asked the public to identify any and all “anti-competitive” regulations. Working with our friends at Authors Alliance, EFF answered, calling attention to a set of anti-competitive regulations that many don’t recognize as such: the triennial exemptions to Section 1201 of the Digital Millennium Copyright Act, and the cumbersome process on which they depend.
Copyright grants exclusive rights to creators, but only as a means to serve the broader public interest. Fair use and other limitations play a critical role in that service by ensuring that the public can engage in commentary, research, education, innovation, and repair without unjustified restriction. Section 1201 effectively forbids fair uses where those uses require circumventing a software lock (a.k.a. technological protection measures) on a copyrighted work.
Congress realized that Section 1201 had this effect, so it adopted a safety valve—a triennial process by which the Library of Congress could grant exemptions. Under the current rulemaking framework, however, this intended safety valve functions more like a chokepoint. Individuals and organizations seeking an exemption to engage in lawful fair use must navigate a burdensome, time-consuming administrative maze. The existing procedural and regulatory barriers ensure that the rulemaking process—and Section 1201 itself—thwarts, rather than serves, the public interest.
The FTC does not, of course, control Congress or the Library of Congress. But we hope its investigation and any resulting report on anti-competitive regulations will recognize the negative effects of Section 1201 and that the triennial rulemaking process has failed to be the check Congress intended. Our comments urge the FTC to recommend that Congress repeal or reform Section 1201. At a minimum, the FTC should advocate for fundamental revisions to the Library of Congress’s next triennial rulemaking process, set for 2026, so that copyright law can once again fulfill its purpose: to support—rather than thwart—competitive and independent innovation.
You can find the full comments here.