| That analogy breaks down when the idea of encryption is considered. AWS has end to end encryption for customer data in motion, and optionally at rest. Pornhub is the only party that has absolute control and access of the data. The data centers are not at fault any more than the government is, for owning a road, when someone driving a tesla car in autopilot causes a crash. In this analogy, Visa is in the same position as a power plant that provides electricity for Tesla cars. I believe Visa should not be held legally accountable for the lack of action on Mindgeek/Pornhub in taking down and blocking reuploads of reported CSAM. However the issue is that Visa themselves have chosen to be a moderator of what content is allowed by its customers, regardless of the actual legality of the content. They do it indirectly by accepting and rejecting customers based on these guidelines that are not in line with what is or isn't allowed by law. Based on a shallow reading of the court documents, Visa made essentially the same argument, that it stands an independent of the decisions of Mindgeek and those who uploaded the CSAM. The counter is the idea that Visa is at fault for giving Mindgeek/Pornhub/Uploaders of CSAM a platform to make money in the first place. That was a decision made by Visa. The fact that Visa already stopped being a payment processor for Pornhub/Mindgeek once in 2020 due to a NYT article about CSM shows that Visa was aware of and had control over how strictly Mindgeek/Pornhub polices the uploads for CSAM. The case isn't about the existence of CSAM on Pornhub either, it's specifically calling out how Visa and Mindgeek has already profited from traffic generated by CSAM hosted on Pornhub. In my analogy, it would be a power plant knowing the electricity they provide will be used in Tesla cars used by criminals to rob places. Tesla, in this example, knowingly selling cars that they know will be used for robberies and not doing anything about it. Tesla cars can't run without electricity, and the power plant makes money from selling the electricity to a group they know will use it up faster than the general driver. Electricity and transportation is a regulated utility. I wonder if this case would not have a legal standing if net neutrality existed and a counter was made by Visa that it treats Mindgeek like any other media content provider and won't reject customers it provides services to, because it doesn't differentiate based on the specifics of the data. The website owners would still be responsible for host CSAM in that situation. Visa could potentially argue no joint understanding if net neutrality existed. Right now it's in contention because Visa has already shown it rejects and accepts customers based on their own rules about what kind of data is being served by its customers. Visa's previous action to stop and then restart providing a platform to Mindgeek/Pornhub, after they removed unverified content, shows a clear understanding of what kind of media is served. By re-accepting them as a merchant, Visa opened itself up to being a beneficiary and conspirator in Pornhub making money from CSAM, by being the company that provides a way for Mindgeek to make money. Not from pornhub directly but by being a payment processor for the advertising arm of Mindgeek. The specific issue is making money from CSAM, not the existence of CSAM. |
Maybe it's time to regulate payment processors and turn them into utilities. That or create a national payment processor that does one thing and one thing only (process payments) under a transparent set of laws treating every traction equally.
I have no love for Visa or Mastercard. I'd rather not deal with them at all if I had an alternative that was just as convenient. It kind of crazy that with our modern tech and banking system we don't have that easy alternative and still have to keep these dinosaurs around just to easily pass numbers back and forth between banks.