Sunday, April 25, 2021

035 The Erickson Report for April 8 to 21, Page Three: Two Weeks of Stupid: Clowns and Outrages [the Outrage]

035 The Erickson Report for April 8 to 21, Page Three: Two Weeks of Stupid: Clowns and Outrages [the Outrage]

We end with our Outrage and this one is a bit different because it's not about an incident or a policy, but a topic, one I've been meaning to mention for a while.

The Electronic Frontier Foundation, which focuses on digital privacy and free speech reports that during the pandemic, a dangerous business has prospered: invading students’ privacy with proctoring software and apps.

The group says that in the last year, universities have been compelling students to download apps that collect their face images, driver’s license data, and network information. And it does beyond solely extensive ID requirements: Students who want to move forward with their education are sometimes forced to accept being video recorded in their own homes and having the footage reviewed for “suspicious” behavior.

But believe it or not, that's not the Outrage here.

Unsurprisingly, students and educators have been pushing back against these invasions of privacy. Last fall, Ian Linkletter, a remote learning specialist at the University of British Columbia, became one of them.

Linkletter looked at what the software actually did and compared it to what Proctorio, the company that sold the spy apps to the university, was telling people about it. He posted some of his criticisms on Twitter, and included links to Proctorio's publicly-available YouTube videos.

So Proctorio has sued him, claiming - and I had to admit I read this a couple of times to make sure they were really saying this - that by linking to publicly viewable YouTube videos, Linkletter had violated both Proctorio's copyright and a confidentiality agreement between the university and the company on the grounds that even though the videos were publicly available, they were confidential. Note well, Linkletter did not alter the videos, he didn't re-use them in any way, he didn't even copy them. He just linked to them. But according to Proctorio, that's enough.

The case is transparently absurd, but that's not the point. This is - and this is why I bring this up - a classic SLAPP, a Strategic Lawsuit Against Public Participation, a suit not with the goal of winning a judgment but of silencing opposition by saddling an individual or small group with back-breaking legal costs, aiming to financially break them or force them to agree to shut up in exchange for the suit being dropped.

Fortunately for Linkletter, British Columbia has a sort of “anti-SLAPP” law, allowing a defendant to bring an early challenge to the lawsuit against them on the basis that their speech is on a topic of “public interest.” If the court accepts that, the suit is dismissed unless the plaintiff can meet a very high standard for it to continue. Dismissal could also result in the defendant getting their legal fees back.

Which is good, but hardly good enough. Getting your fees back is not guaranteed and in any event it requires being able to pay them in the first place. Linkletter, for example, has had to raise $50,000 to defend himself. For the corporation, "losing" can be written off as a cost of doing business, worth it to silence a critic. For the defendant, "winning" can be bankrupting, spiritually if not financially.

Stopping SLAPPs will take more than enabling recovery of costs after the fact. There must be actual penalties to these corporations, including being liable for personal damages, not just legal fees.

SLAPPs have been a weapon wielded by the strong against the weak for some time. They are still being used but we don't hear about a lot of them because the defendant often is required to never discuss the case as a condition of the suit being dropped.

Their purpose is to make the cost of objecting to corporate power too high. It's time we made the cost of silencing speech even higher.

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