We are entering a time when it is becoming clear that corporations are a means to sidestep the judicial process. Today, and to a lesser extent in the past, companies are put into the position of adjudicating decisions of legal concern regarding peoples' actions within their domain of control. This post will use Flickr and issues around its Safe Search for our examples; but the symptoms described are common.
Safe Search is a feature meant to partition the photos uploaded to Flickr into three groups which they
describe as follows:
1. Safety Level
- Safe - Content suitable for a global, public audience
- Moderate - If you're not sure whether your content is suitable for a global, public audience but you think that it doesn't need to be restricted per se, this category is for you
- Restricted - This is content you probably wouldn't show to your mum, and definitely shouldn't be seen by kids
Where there are many reasons for the rating system the one we will concern ourselves with is that of compliance with the laws of Singapore, Hong Kong, Korea, and Germany. In these countries people's ability to view content is limited:
Note: If your Yahoo! ID is based in Singapore, Hong Kong or Korea you will only be able to view safe content based on your local Terms of Service so won't be able to turn SafeSearch off. If your Yahoo! ID is based in Germany you are not able to view restricted content due to your local Terms of Service.
The Register
reports that the restrictions in Germany are due to "stricter legislation and penalties in that country". Here we see Safety Level being used to enforce law, or at least Yahoo's interpretation of German law. Moreover, to facilitate enforcement of the law, Flickr is compelled to enforce a policy that all users, not just those in restricted countries, accurately label photos. Flickr's policy enforcement is where things become problematic.
If we take that we can decompose governance it to Legislative, Judicial, and Executive components, Flickr is acting in both Judicial, and Executive roles with only the Legislative role left to the government of the German people. The result being that Germans are denied the procedures and laws of their country meant to ensure that law is applied justly. ( If this were not bad enough, these rules are applied to all Flickr users not just German ones. )
The process that befalls a user that mislabels a photo under the watch of Flickr is as follows:
1. An anonymous person
flags a photo as under-moderated:
Staff hear about this sort of thing because your fellow members can flag photos around the site if they feel that you have categorized things incorrectly, or they may even send a report to us that some of your content is offensive.
2. An anonymous Flickr employee makes a judgment about the flagged photo.
3. If the employee finds the photo to be under-moderated, the entire account hosting the photo is forcibly moderated to a level of the employee's choosing. A second offense can end in account
deletion.
In this process the user under judgment is subject to a secret trial with secret evidence initiated by a nameless accuser. The accused does not even know they have been tried unless they are found guilty. They are not informed which act of uploading was their crime; and punished though a ghettoization from which they have very little ability to appeal. ( One can request a re-review but they don't tell users which photos were offensive so it can be hard to correct one's actions. )
Some would argue that this issue will be temporary as the
market will correct; but I think that is naive given that social applications exhibit
network effect making it hard for people to leave. We need to have a discussion about how we should address this as a culture. What are the boundaries how lawmakers can ask companies to act as enforcers of the law? How will due processes evolve?