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Section 230 Is a Last Line of Defense for Abortion Speech Online

Section 230 Is a Last Line of Defense for Abortion Speech Online

Forced-birth extremists are not satisfied with shutting down abortion clinics. They also want to scrub accurate information about abortion access from the internet. In a post-Roe world, defending online speech about abortion—and the ability for abortion advocates and providers to fundraise and organize online—is a matter of life or death. Democrats who have been misguidedly attacking Section 230 of the Communications Decency Act need to wake up now. If they don’t start listening to the warnings of human rights experts, sex workers, LGBTQ+ folks, and reproductive rights groups, Democrats could help right-wing zealots achieve their goal: mass censorship of online content about abortion.

Since the Supreme Court overturned Roe on June 24, frontline reproductive justice groups have been fighting back—on the ground, in court, and online. Abortion funds across the country have seen a massive influx of donations through crowdfunding platforms. Ad hoc groups have sprung up on places like Reddit and Facebook, where people are sharing resources and facilitating housing and travel for those in need. But all of this is fragile.

Texas has already enacted legislation, known as SB 8, that enables any individual to sue a person or institution for facilitating access to abortion care. That includes sharing information online about managing the abortion process, obtaining an abortion pill, or finding a clinic that offers abortions. The National Right to Life Committee has released a model state law that criminalizes providing or hosting information or assistance on how to get a medical abortion. It specifically says that anti-choice laws must be written to prevent state residents from seeking abortions in states where it is legal to do so. This law is likely to pass in several states.

Section 230 is the last line of defense keeping reproductive health care support, information, and fundraising online. Under Section 230, internet platforms that host and moderate user-generated content cannot generally be sued for that content. Section 230 is not absolute. It does not provide immunity if the platform develops or creates the content, and it does not provide immunity from the enforcement of federal criminal laws. But, crucially, it does protect against criminal liability from state laws.

This means that as Section 230 exists today, a lawsuit from an anti-abortion group concerning speech about reproductive health care or a criminal proceeding launched by a forced-birth state attorney general would be quickly dismissed. If Section 230 is weakened, online platforms like GoFundMe and Twitter, web hosting services, and payment processors like PayPal and Venmo will face a debilitating and expensive onslaught of state law enforcement actions and civil lawsuits claiming they are violating state laws. Even if these lawsuits ultimately fail, without Section 230 as a defense to get them dismissed quickly they will become enormously expensive, even for the largest platforms.

Forced-birth extremists are litigious, well resourced, and ideologically motivated. Tech companies care about making money. Rather than spending tens of millions fighting in court, many online platforms will instead “race to the bottom” and comply with the most restrictive state laws. They’ll change their own rules on what they allow, massively restricting access to information about abortion. As a result, countless groups, pages, online communities, nonprofits, and health care access funds could be shuttered and removed from the internet—from r/AuntieNetwork to the donation options and educational content on Planned Parenthood’s website. We’ll live in a country where lawmakers in Alabama, Mississippi, and Texas get to set the rules for online speech nationwide.

How Dobbs Threatens to Torpedo Privacy Rights in the US

How Dobbs Threatens to Torpedo Privacy Rights in the US

This understanding provided the foundation for the court’s development of constitutional privacy to include a range of personal matters, including family living arrangements, parental rights, marriage, and abortion. But it remained controversial, not only because of the intense division of views over abortion, but also because it allowed for broader judicial authority in interpreting the Constitution.

The ‘Treacherous Field’ of Constitutional Privacy

First, a quick explanation of Dobbs and its rejection of a constitutional privacy right to abortion. It’s a story that began in the 1890s and continued to 1937, a period during which the Supreme Court entered what Dobbs and prior court opinions described as the “treacherous field” of substantive due process.

For roughly four decades at the outset of the 20th century—the so-called Lochner Era, named for a representative case of the period—the Supreme Court applied the due process clause of the Fourteenth Amendment expansively to review and strike down a range of social and economic regulations on grounds that they were unreasonable. Applying a “substantive” understanding of due process, the justices often freely superimposed their own ideas of the appropriate limits on government regulation of individuals.

This review was not confined to exceptional areas of individual interest but applied broadly to government regulation of wages, working conditions, the economy, and commercial transactions, as well as to more personal interests, such as parents’ choices regarding education and childrearing.

Frustration with the justices’ willingness to strike down popular legislation on the basis of their own views on reasonableness intensified during the Great Depression, as the court’s understanding of “substantive due process” became an obstacle to many New Deal efforts to revive the economy and protect the interests of the vulnerable.

Under mounting public pressure, the Supreme Court reversed course in 1937 and renounced Lochner’s understanding of substantive due process and the court’s power to second-guess ordinary regulation. After 1937, the court understood substantive due process to mean only that whenever government interfered with individual liberty, it must act rationally in pursuit of a legitimate state interest. Under this “rational basis test,” virtually all government regulation was held to be constitutional.

In 1965, in Griswold v. Connecticut, the Supreme Court revived a broader understanding of the Constitution’s protection for individual liberty after striking down a Connecticut law that regulated contraception. But it hesitated to describe this protection as substantive due process, given the near-universal rejection of the Supreme Court’s abuse of its role during the Lochner Era. Instead it attributed the protection to a more amorphous “right of privacy” implicit in constitutional guarantees without committing to any one textual source. The Griswold court also emphasized that this right of privacy did not open the door for more aggressive court review of ordinary social and economic regulation.

In Roe v. Wade in 1973, the court found that a woman’s right to elect an abortion fell within the heightened protection for individual privacy, while also suggesting that it would be better to acknowledge that this heightened protection came from substantive due process under the Fourteenth Amendment.

In future cases, the Supreme Court continued to acknowledge that its heightened protection for privacy rights was a product of substantive due process review while insisting that this was consistent with the rejection of Lochner because it applied only to “fundamental” liberty interests. As a result, the court’s doctrine required differentiating “fundamental” liberty interests, for which government interference was presumptively unconstitutional, from ordinary liberty interests, which the government was presumptively free to limit as long as it acted rationally.

The justices continued to struggle over which liberties ranked as fundamental. A narrower test favored by more conservative justices limited fundamental rights to only those that were clearly set out in the Constitution’s text or would have been regarded as essential at the time the Fourteenth Amendment was enacted in 1868. A more expansive approach, employed in Roe and other cases, looked more to a contemporary assessment of the profound stakes for the individual. Yet another approach, suggested in cases like Lawrence v. Texas, looked to evolving understandings of essential personal liberty as evidenced by popular consensus.

‘Supercookies’ Have Privacy Experts Sounding the Alarm

‘Supercookies’ Have Privacy Experts Sounding the Alarm

Customers of some phone companies in Germany, including Vodafone and Deutsche Telekom, have had a slightly different browsing experience from those on other providers since early April. Rather than seeing ads through regular third-party tracking cookies stored on devices, they’ve been part of a trial called TrustPid.

TrustPid allows mobile carriers to generate pseudo-anonymous tokens based on a user’s IP address that are administered by a company also named TrustPid. Each user is assigned a different token for each participating website they visit, and these can be used to provide personalized product recommendations—but in what TrustPid calls “a secure and privacy-friendly way.” It’s that “privacy-friendly” part that has raised critics’ hackles.

The internet runs on advertising: Digital ads worth a total of $189 billion were bought and sold last year, according to the Internet Advertising Bureau (IAB). But the ad industry’s dirty little not-so-secret is that it relies on intrusive surveillance of people’s online activities, piecing together their interests based on the websites they visit, what they post, and more.

For Vodafone, the company running the trial in Germany, TrustPid offers an alternative by allowing advertisers to gain value from customer insights while also supposedly keeping those users’ data private. But not everyone agrees. Internet privacy experts have labeled TrustPid a supercookie—a piece of technology that links a crumb of data to a user’s IP address and mobile phone number—and believe the trial should be halted and commercial plans shelved. They are particularly concerned about the way network operators are co-opting what is meant to be a simple passage of communications data, which they have unique access to, to transform it into a targeted advertising platform. Deutsche Telekom did not respond to WIRED’s request for comment. Vodafone says it’s all a misunderstanding.

“Let me stress that the TrustPid service is not a supercookie,” says Simon Poulter, senior manager of corporate communications at Vodafone Group, which is overseeing the German trial. Instead, the telco refers to the technology as being “based on digital tokens which do not include any personally identifiable information.” Each token, says Poulter, has a limited lifespan of 90 days that is specific to individual advertisers and publishers.

William Harmer, product lead at Vodafone, says the project isn’t a supercookie because it doesn’t use data interception to build up customer profiles, unlike the ad tech once used by Verizon Wireless, which in 2016 was fined $1.35 million by the US Federal Communications Commission (FCC) for having injected supercookies into users’ mobile browser requests for two years without consent. A 2015 investigation by digital civil rights nonprofit Access Now found that carriers across 10 different countries used supercookies dating back to 2000. Those negative headlines are why Vodafone pushes back so vehemently against the supercookie designation.

Vodafone claims TrustPid, which has each partner website generate a different token for the same user, reduces the likelihood of user data being triangulated across websites to create extensive profiles of user interests—a major concern for internet users sick of being chased around the web by targeted ads. “The technology has been built following a privacy-first design, and it complies with all GDPR requirements and related legislation,” says Poulter.

Democracy Is Asking Too Much of Its Data

Democracy Is Asking Too Much of Its Data

Abraham Lincoln once expressed the desire, in a time of civil war, to preserve a government that was “of the people, by the people, for the people.” What he did not say was that such government has also always been of the data, by the data, and sometimes for the data. Democratic governance has been fundamentally data-driven for a very long time. Representation in the US depends on a constitutional requirement, instituted at the founding, for an “actual enumeration” of the population every 10 years: a census designed to ensure that the people are represented accurately, in their proper places, and in proportion to their relative numbers.

A complete national count is always a monumental task, but the most recent actual enumeration faced unprecedented challenges. The 2020 census had first to overcome the Trump administration’s ill-conceived effort to add a citizenship question. Then it spent half the year in the field straining to count every person during a pandemic that made knocking on strangers’ doors particularly difficult. A series of devastating hurricanes and wildfires added to the challenge. And yet, in late April 2021, the professional staff of the US Census Bureau managed to fulfill the constitution’s mandate and revealed state-level population totals, translating those into an apportionment of the 435 seats of the US House and a corresponding number of votes in the electoral college. (The apportionment occurred automatically according to an algorithm, called “equal proportions” or “Huntington-Hill,” that is prescribed by law.) Now, just last month, we learned that some of those numbers were, most likely, wrong.

The Census Bureau’s Post-Enumeration Survey (PES) went back out into the field, reinterviewing a sample of people from throughout the country, and then compared the new, more in-depth survey to the results of the census. Analyzing this comparison, the bureau now estimates that the 2020 census overcounted in eight states and undercounted in six. To give a sense of the scale of these errors, the PES reported with 90 percent confidence that New York’s state population was overcounted by anywhere from 400,000 to over 1 million additional people, or 1.89 to 4.99 percent of the population. Considering the circumstances of the count, such low error rates should be considered impressive, and yet such differences can have big consequences when the last seat in the US House has, since 1940, been decided by as few as 89 people and no more than 17,000. Much of the initial commentary on the PES results has focused on the horse-race implications of the errors, pointing out that more of the states that were overcounted were blue states, while more of those undercounted were red. The errors, apparently favoring one party over another, have even been labeled “a scandal” and the census written off as “a bust.”

These are overreactions, and yet the question remains: What should we do about these small, but both statistically and politically significant errors?

This is a conundrum that our nation’s leaders have wrestled with since the founding. Over the course of the last century, two distinct approaches have dominated. One depends on funneling money and energy into mobilizing more census takers and toward other systemic reforms that preemptively reduce error. The other involves statisticians who have worked to develop techniques that can measure error precisely and then make corrections to the census counts. Both of these approaches remain important, and yet the scale of the 2020 miscounts suggests that an older method for dealing with census error should be revived: We should expand the House and the electoral college, so that few or no states lose representation in the face of an uncertain count. We should try to count better and fix what errors we can, but our democracy will be more robust if we also lower the stakes of each census. Representation need not be a zero-sum game.

The earliest known reference to a census undercount came from Thomas Jefferson, then secretary of state, who wrote in 1791 about the prior year’s census, the nation’s first. Jefferson wrote his correspondents in Europe, assuring them that the American population was a few percentage points larger than officially declared. It’s hard to say if this was indeed the case, but the story makes clear that concerns about omissions and undercounts began more than two centuries ago. In subsequent decades, disasters and administrative failures caused serious omissions, such as when the official charged with counting Alabama’s residents died in office before completing his work on the 1820 census, or when many of California’s records (including the entirety of San Francisco County) burned after the 1850 census.

Are You Ready to Be Surveilled Like a Sex Worker?

Are You Ready to Be Surveilled Like a Sex Worker?

Additionally, many traditional methods for maintaining relative anonymity on the internet are likely to begin to evaporate. Consider that institutions subject to the Children’s Internet Protection Act (CIPA), which requires libraries and schools to block access to content that may be “harmful to minors,” will have to decide whether to allow public access to abortion information.

Mass surveillance is so normalized that the basic ways we function in the world ultimately help these technologies become more sophisticated. If you are seeking, providing, or facilitating an abortion, you can take practical measures to secure your digital footprint: perform risk assessments, communicate via Signal and enable disappearing messages, use a VPN on your smartphone and computer, use DuckDuckGo instead of Google, acquaint yourself with existing surveillance technologies like traffic cams, facial recognition, and data scrapping, enable two-factor authorization, log out of all your accounts (yes, even when using an incognito browser), only connect to Wi-Fi in public places that don’t require you to authenticate yourself, move money out of third-party apps immediately (and eat the transfer fee), use cash or prepaid cards when you can. Do as much organizing offline as possible.

If you organize publicly, post nothing that could be used to dox you. Some precautions I’ve taken for my own safety as a sex worker include withholding my birthday, age, ethnic background, hometown, current city, former cities, commute, alma maters, graduation years, time zone, weather, current employers, past employers, even my favorite color. When I post photos, I photoshop out my face and tattoos, and I never reveal my natural hair. If I post a screenshot, I crop out any time stamps.

I know this sounds paranoid. These precautions seem excessive; the algorithms seem dystopian. But the oppression these technologies reproduce is insidious and ubiquitous, and those seeking to surveil us have been refining the tools to do so for a very long time. This is exactly why sex workers are preyed upon first: because those in power know nobody will listen to us until you’ve already googled “two weeks late for period.”

When I begin to wonder why people behave the way they do, I answer the query with a question: “What’s seven minus yellow?” Unanswerable and, more importantly, irrelevant. I can’t deduce others’ motives, and even if I could, their motives do not matter when it comes to the effects of their actions. To ruminate on this is, at best, a waste of time, and in the wake of Roe, hemming and hawing over the justices’ intents is the equivalent of bringing a feather to a knife fight.

That said, we can dissect these decisions and try to divine how this legislation will impact us. The first step is to abandon any lingering trust you may have in the integrity of the state.

Neither the intent nor effect of FOSTA or Dobbs is to eradicate sex work or abortions, which have existed for millennia and will continue to exist regardless of legality. Remember: these measures aren’t about the law; they’re about power. Such laws slowly and systemically exclude certain demographics from participation in society by codifying what cultural biases already enforce. Consequently, while some people will face arrest, and many more will live the nightmare of carrying an unwanted or unviable pregnancy to term, the widest-reaching effects of this legislation will be the chilling of free speech and the systemic deplatforming of abortion activists from social media and financial institutions, which will protect themselves from liability at our expense.

The Best Sunglasses for Every Outdoor Adventure

The Best Sunglasses for Every Outdoor Adventure

Sunglasses are a must for any time of year. They protect your eyes from UV light and reduce the chance of conditions like cataracts and macular degeneration. They also reduce eyestrain when it’s bright outside, and they eliminate disorienting glare while driving. Plus, they help to shield your eyes from wind, rain, and flying debris.

Any cheap pair of UV glasses will work—you can find decent options at drugstores or discount stores like T.J. Maxx and Ross—but a few of us on the Gear team have tried dozens of pairs of sunglasses while we ran, hiked, swam, walked, lounged in the sun, and drove. These are our favorites.

Updated June 2022: We’ve added Tomahawk’s wide-face-friendly Wrecker Class glasses, Goodr’s cheap options, Spy Optic’s Happy Boost lenses, and a few more honorable mentions.

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