the Jack (buggery) wrote,
the Jack
buggery

Hold that 'yay' -- everything is NOT suddenly okay.

Yays, LiveJournal/SixApart are being reasonable again! -- or are they?

Let's have a look.

A single, easy to find policy document -- yay, right? Right...?
So, we're working on creating a single policy document that is linked from the bottom of every page in the LiveJournal application. To be completely honest, it's going to take us a little bit of time to get that done, since we want to work with everyone from our community as well as the usual folks like lawyers. We think it will be a few weeks, and we'll update on progress as that happens.
Two problems.

One, there's no indication that any aspect of this forthcoming policy document will be discussed with the userbase while it is in draft form; indeed, the biz post implies precisely the opposite, since the 'Process Change for Non-Photographic Images' policy has apparently gone into immediate effect, despite having serious language problems (see lumping together and banned without warning below). Apparently 'everyone from our community' doesn't actually include everyone who uses LiveJournal.

Two, we have yet to see a statement promising that users will never again be (and should never have been in the first place) suspended, banned, deleted or otherwise penalised for 'violating' a policy which had never been shared publicly with LJ's customers prior to the punitive action. This kind of ex post facto attack is at the very heart of why both fandom and non-fandom LJ users have been outraged by the Strikethrough and Boldend user suspensions.


Yay, they're not lumping together fandom and child pornographers anymore! They say they don't -- right...?
Today we're announcing a revision to the process of how we deal with reports of child pornography. (Please note: We *know* there's a difference between the vast majority of fan art and child porn. We're definitely not lumping these things together.)
Let's leave entirely aside their qualification that it's 'the vast majority of fan art' which isn't child porn. (In fairness, someone could, in fact, take a real photograph of a real child being sexually abused which was real child pornography, apply a couple of Photoshop or GIMP filters, and claim it's fanart.* They'd be sneered out of any fandom they tried that tactic in, and quite likely be reported by fandom users themselves, but that's neither here nor there.)

They say they know the difference. Yet they fail to distinguish between fanart and child pornography, twice, later in the very post in which they've made that claim:
  • (b) Our process for drawings, cartoons, animation and other non-photographic images is slightly different. An image of this type that obviously violates our policy will be treated the same as a photographic image of child pornography [emphasis mine] (see banned without warning and two-strikes below)

  • Many of you have asked about whether or not it is OK to link to outside content that falls into the category of child pornography, and the short answer is no, it's not OK. (see policy on links below)
And as usual, the conflation of child pornography and {non-photographic artwork depicting naked and/or sexually positioned persons under the age of eighteen, whether the subjects are real or fictional persons} is rampant in comments by LJ staff in comments on the post.


No more witch-hunts for objectionable material in fandom journals -- can we say yay yet...?
To start with, the ground rules: We accept all reports of potential child pornography that are reported to us, regardless of the source, but will only take action when that material violates our policies.That means we will accept reports even from people or groups that are annoying or have an axe to grind, but if content is not in violation of the policy, it won't have any effect.
This would be wonderful news, if it were reassuring to anyone other than a straw man.

Few if any LJ users believed that LJ representatives, either on the Abuse Prevention Team or otherwise, were themselves targeting fandom users or communities for investigation. Outside groups lumped fandom in with child predators first. The problem is that, the first time (i.e., Strikethrough), LJ took a few admitted bigots' word that everyone they reported was a real child pornographer or child predator, and the second time (i.e., Boldend), LJ representatives' personal biases were the sole basis of their decision to ban elaboration and ponderosa121.

We have received some assurance that there will not be a repeat of the first case, though the worth of those assurances depends on whether LJ's customers trust the company not to break its promises again.

There has been no assurance whatsoever that the second case could not happen to other users in the future, however. The two artists banned on or about 3 August 2007 allegedly had their content reviewed by at least two LJ representatives before they were banned; yet there still has not been an unequivocal or factually correct explanation of why those users were banned, only libellous assertions that the content they were banned for constituted child pornography under U.S. law (in some communications from LJ representatives regarding the suspensions) and the insulting suggestion that at least one artist's work met the Miller standard for obscenity because it 'does not contain serious artistic ... merit' and LiveJournal 'clearly did not see serious artistic value in' the artists' work.

These facts would be worrisome enough in a vacuum, but they are merely the most recent examples of LJ Abuse decisions which fly in the face of their own policies** (and policies have been tweaked after the fact to create a retroactive justification for a dubiously-based suspension at least once before).

LJ users are still just as vulnerable to witch-hunts initiated from outside the LJ community as we were before May's mass deletions, because the power to decide whether a complaint about a user's content is valid still rests entirely in the hands of people who have proven time and time again that they cannot make just or unbiased decisions.


Well, at least nobody is going to be banned without warning anymore... right? Yay...?
(b) Our process for drawings, cartoons, animation and other non-photographic images is slightly different. An image of this type that obviously violates our policy will be treated the same as a photographic image of child pornography, but in questionable cases involving a non-photographic image we will adopt a "two strikes" process. [emphasis mine]
Oh, the problems with this phrasing.

First, the section I've highlighted: This is akin to a list of rules which says, 'Any violation of the rules will be considered a violation of the rules'; if no other rules are listed, it's meaningless. What is being referred to with 'our policy' -- something in the forthcoming policy document which hasn't been written yet? It's a textbook example of circular reasoning.

The other problem with the highlighted section is that it says 'drawings, cartoons, animation and other non-photographic images ... will be treated the same as a photographic image'. Sure, there's a separate clause which adds that 'in questionable cases ... we will adopt a "two strikes" process'... but what are 'questionable cases'? Cases where it's difficult to determine whether the content is a photograph or not? Cases where it's difficult to determine whether a person depicted in the image is under eighteen years of age or not? Cases where it's difficult to determine whether the person depicted is a real minor (e.g., my neighbour's grandchild) or a fictional character (e.g., Charlie Brown of Peanuts fame)? Cases where a fictional child or teen is depicted but resembles a real minor who portrayed the character onscreen? Not addressing every possible example is reasonable, if only to avoid a policy document of infinite length, but failing to define terms renders any such document useless.


Right, well, a three-strikes rule would have been nicer, but two-strikes seems fair enough. Ya-- what now...?
(b) Our process for drawings, cartoons, animation and other non-photographic images is slightly different. An image of this type that obviously violates our policy will be treated the same as a photographic image of child pornography, but in questionable cases involving a non-photographic image we will adopt a "two strikes" process. [emphasis mine]
[...]
In the case of questionable links, we'll use the "two strikes" process.
(See above under banned without warning and below under links to content for further discussion of these two sections of the Process Change post.)

So, there will be one chance (in some cases; in other -- perhaps most -- cases, no second chance will apply) for a user to remove reported content which is found by [insert arcane and opaque LJ Abuse determination method here] to violate LJ's TOS or other forthcoming policy document. Once a user has had to take down content deemed inappropriate in their 'first chance' violation, any further report of inappropriate content by that user deemed by [insert arcane and opaque LJ Abuse determination method here] to have merit will result in the user being banned and their journal(s) deleted without further warning.

Let's see what would happen if LJ's users applied this sort of 'process' to LJ itself.
LiveJournal: Some of our users and communities may be making us look bad. There's nothing in our TOS or other policies which says that listing 'serial killers' or 'the holocaust' as an interest means the user approves of those things, but let's go ahead and kick them off the site and keep their money anyway. *Strikethrough*
LJ users: WTF? Hey! That's not fair! You violated our trust!
LiveJournal: Hmm, okay, we guess that was pretty offensive and uncalled-for. We didn't mean to violate your trust -- give us another chance, we'll never do that again!
LJ users: Okay, we'll give you another chance.
LiveJournal: Some of our users and communities may be making us look bad again. We'd better get rid of these people, even though what was reported to us as child pornography are clearly drawings and thus excluded from the legal definition of child pornography. Probably no one will notice so long as we do it quietly. And if anyone does notice, we can just pretend it really was child pornography, or violated the law in some other way -- that way no one can blame us. *Boldend*
LJ users: Well, we warned you! You did the same thing a second time. You lose us as customers, and you forfeit any money we paid you based on the terms you said you agreed to after you violated our trust the first time.


If a two-strikes policy were truly fair, LJ would be offering refunds, not circumlocutory platitudes, right now.


And they clarified their policy on links to content on other sites, and pretty soon after we asked! Yay, right...?
Many of you have asked about whether or not it is OK to link to outside content that falls into the category of child pornography, and the short answer is no, it's not OK. Think about it: If we said it was OK across the board to link to child pornography, then people would make communities just to do so.
There's a reason our online playground is called the Internet and the World Wide Web, and that reason is that different parts of it are hyperlinked together.
    Think about it:
  • IF a user discovers a (non-livejournal) website which contains content objectionable to that user, and posts a link to it in order to encourage other LJ users who read their journal to join in making protests to the company which hosts the content, THEN they could be banned by LiveJournal.
  • IF a user posts a link to a site hosting photographs of Robert Mapplethorpe's (or another artist's) controversial -- yet ruled non-obscene in a court of law -- artwork, because they wish to discuss it but don't wish to display the content itself on their journal, THEN they could be banned by LiveJournal.
  • IF a user posts a link to a site hosted in a country where the legal definition of child pornography excludes images of some persons under the age of eighteen, for the purpose of alerting fellow parents whose children may be considering studying abroad in (or already visiting) such countries, THEN they could be banned by LiveJournal.
  • IF a user posts a link to their (or someone else's) MySpace page, and the page linked to is subsequently 'goatsed' with an objectionable image as a result of its owner hotlinking images from yet another server (which recently happened to thousands of MySpace users), THEN they could be banned by LiveJournal.
  • IF a user posts a link to a Google Image Search results page based on having searched, with SafeSearch on, for (for example) "andy is this asian jerk i work with" or "can't beat a twinkie" and anyone else follows their link to the results page but has SafeSearch turned off, THEN they could be banned by LiveJournal.
  • IF a user posts a link to a website which displays a photograph of Jon-Benet Ramsey wearing a two-piece bathing suit, even if the intent of that site is to mourn or investigate her murder, THEN they could be banned by LiveJournal.
  • IF a user posted a link in their journal weeks, months or years ago to a website whose domain registration has since expired and is being 'cybersquatted' by someone making it display child pornography or other objectionable content, THEN they could be banned by LiveJournal.
  • IF anyone had actually created a journal for the sole purpose of posting links to unambiguous child pornography, THEN this argument might have a shred of merit.
And that's leaving entirely aside the fact that no one asked whether users could post links to child pornography on other sites from their LJs; the question which was asked by numerous users was whether they would be treated as if they had posted content LiveJournal found objectionable on LJ if all they did was post a link to another website where 'questionable content' was located.

There's additionally the fact that, far from a 'clarification' of or even a 'slight change' to existing policy, the new definition of hyperlinks as potentially ban-worthy 'content' is in fact a complete reversal of previous policy. Here is the guideline for handling reports of off-site objectionable content by LJ users, from the document the Abuse Prevention team themselves (are supposed to) use:

Non-LiveJournal Requests
Last updated: November 29th, 2004

Summary

Any report of abuse occurring off of LiveJournal's servers, such as on a message board, instant messenger service, or similar, even if both parties are LiveJournal users.

Action

Inform complainant that the Abuse Team can only act upon abuse taking place on LiveJournal's servers. Recommend that user hide contact information and contact the Abuse Department of the service on which they are experiencing the abuse.

Explanation

This one speaks for itself; we can't address any content which resides off of LiveJournal as, quite frankly, it's none of our business what occurs off our servers.

(HTML duplicated above in case of subsequent revision to source; link follows.) That last bit bears repeating:
we can't address any content which resides off of LiveJournal as, quite frankly, it's none of our business what occurs off our servers. LiveJournal and SixApart are not and should not be in the business of policing the content of the entire Internet.


But haven't the suspensions been rescinded? Can't we at least celebrate the return of the two artists to their LJ community?
This new process might have changed the way that two members were recently permanently suspended without warning. In respect to their privacy, we aren't going to get into details of any individual suspensions. But you should know we are reaching out to these people
'[M]ight have changed'...? Oh, I give up.

Yes, both elaboration and ponderosa121 (both artists have the same usernames at insanejournal.com as they had previously used on livejournal.com) were given the opportunity to have their accounts restored -- elaboration is already back, and posted the contents of the email she received from LJ/6A rescinding her suspension. Pond is so fed up with LiveJournal's behaviour that she doesn't want to come back.

Note, however, that in the midst of all the apologies in the 'Process Change for Non-Photographic Images' post, there is neither apology nor retraction for any of the libellous statements about the two artists made by various LJ representatives over the past couple of weeks. No word yet as to whether Pond will get an apology for LJ representatives having lied to other users about her stance on having been banned, either.

And, at least in elaboration's case, LJ is counting her now-lifted suspension as 'strike one' -- so she can't afford to run afoul of Abuse's still vague, subjective and inconsistent process for deciding which journals' content is okay and which isn't even one more time before being banned again.


Yay, it's the end of the post! That was stressful. One last thing -- let's break down exactly what message LJ sent its users last night...

...I tried to do a numerical breakdown of how many sentences were actual policy/process statements, how many were apologetic, how many were appreciative, how many asserted the idea that 'we’re all ultimately on the same side', how many were statements of intent, and so on. I got about three paragraphs in and concluded I wasn't qualified to do that sort of analysis; maybe someone with a background in communications or psychology could give it a try. Heck, I may not even have been choosing the right categories; I didn't even differentiate 'we statements' from 'you statements', or single out sentences structured as statements of fact whose assertions are actually in dispute.

I remain convinced, however, that such an analysis would be illuminating, to say the least. I've picked at some of what theljstaff said, but there's still enough of a lingering bad taste in my mouth that I think we, as users, ought to look at how they chose to say it, too.


Notes
*For everyone who can't visualise what I'm talking about: Here is a 6A promotional photo of Barak Berkowitz. Smaller versions are all over SixApart sites, including the management bios page at SixApart.com and Barak's typepad blog. And here is a cropped version of the same photo, run through exactly three Photoshop filters (Accented Edges, Colored Pencil, and Poster Edges) and with a slapdash painterly background created with faded gradients and the same three filters: Look, I 'painted' this picture of Barak -- feedback plz! :3.

**See this example of a policy being used to penalise one user but not against the reporting user who violated both the same (no posting personal information about other users) and other (no inciting violence, no racist hate speech) policies; this example of LJ Abuse aiding and abetting the harassment of an LJ user by a notorious crackpot, in defiance of multiple court rulings; this example in which accounts were suspended on the basis of mistaken identity and other accounts were suspended on the basis of Abuse inferring meaning neither intended by the user nor implicit in her words; and Nipplegate -- note that this is not an exhaustive listing.

Acknowledgments:
Special thanks to akuma_river for this supremely useful collection of links to posts and comment threads related to these issues, and to the metafandom team for collecting links to many posts not on that list.

Cross-posted to my my InsaneJournal here. Comments are enabled there. I sincerely apologise to anyone who finds IJ's theme offensive; I weighed this concern carefully against the need to have a journal host I felt I could trust not to arbitrarily delete my content. I hope to find a compromise which is more accomodating of both issues soon.
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