Internet & Society 2002

Class 8

I. Intro

A. “Hangover day”

B. Polling & Text Submission Tools Available – http://cyber.law.harvard.edu/polling

1. Use it or lose it.

C. Need help finding a pair to write your paper?

1. Talk to Elizabeth Eaton. eeaton@law

II. Bad content – Nuremburg Files

A. Consensus about what is harmful speech? (Or if there is any? Maybe “it’s just speech” so no need to do anything about it.)

B. See http://www.christiangallery.com/atrocity

C. Illegal?

1. Elizabeth Nugent: Not quite. But on the border. Almost a threat. Figure out whether this site is over the line by determining whether this list puts a reasonable person (on the list) in fear of his life.

· But people could have a reasonable fear of harm as a result of listing on this site.

· Note that information is available elsewhere. Address, employment, etc. are not secret. Who is dead is also knowable.

D. Though actual threats – creating a clear and present danger of imminent lawless action – are illegal.

E. James Benenson: Not present.

F. Amy Gross: Agree. This is public information. It’s all out there in other contexts.

G. Sliders: Left= “ought to be illegal” and right=not. Distribution is bimodal (clumped at each extreme). MIT people tend to think it ought to be illegal, HLS students think not.

H. How to change the story? (over the ‘net)

1. Defense secrets.

2. Conspiracy for something already illegal.

3. “I am going to kill …” (see Google results)

4. Someone stalking his girlfriend. (see http://www.psychoexgirlfriend.com )

· This has ended in murder at least once.

5. Chat room / mailing list – “whipping crowd” up into a virtual (or real?) lynching.

6. Threatening to kill the president.

7. Hate speech.

8. Voicemail of a minor. Child porn or other pictures of kids.

· “Babes of the Web” mock-up – http://cyber.law.harvard.edu/people/rnesson/babesoftheweb

· “Disgusting!”

I. Is this a special Internet problem?

1. On the ‘net, anyone can see anything. Wide distribution is easy and cheap, more so on the Internet than was previously the case.

2. No difference. If this encourages commission of a crime, it’s illegal. Same on the ‘net as in the real world. Note that the person producing the web site can credibly say that he didn’t know how many people were going to look at it.

3. What to do about it?

· Amy Gross: The problem is the action on the Internet, not the Internet itself. Need to determine who posted the content. Can be tricky (anonymous mail, etc.) but possible in principle.

4. Private cases – plaintiff alleges bad behavior by the defendant, government only involved in the context of operating the court.

· Amy Gross: See if Yahoo will release the contact info of the operator of a site. It may or may not be inclined to do so. Will ask judge for discovery assistance.

· Yahoo: We don’t collect that information, and when we do, we don’t verify it. Can’t help unless a judge orders this. Will help so as to avoid going to court over this.

· Perhaps Yahoo keeps logs of IP addresses of user at registration, later on, etc. Perhaps this gives the IP of his home computer. Or, it might be, say, an AOL IP address – maybe traceable back to a particular AOL user at a particular time.

· Should try to avoid doing this too frequently.

· Or Yahoo makes a case-by-case determination? If plaintiff doesn’t like it, can go to court.

5. Or, government gets involved because alleges a criminal activity.

6. How this actually unfolds -

· Companies unhappy that their employees are saying bad things about the company. Need to find out who they are – so they can be fired.

· Yahoo tells the company the contact info when asked by the company. Certainly any paid account includes billing info with a name.

· Employees call Public Citizen, EFF, etc. for help.

· Move to quash the subpoena.

- Courts: Huh? This doesn’t happen much in the real world. Judge could find out the name of the defendant, but the plaintiff might not be allowed to find out the defendant’s name.

· If public policy is to prevent plaintiffs from learning names of defendants in these cases, should have an explicit law to this effect.

- Even if this doesn’t happen, some company will set up a service with complete anonymity (where such information is never recorded).

- Could pass a law to require companies to collect and retain certain information (contact info, etc.) for any customer getting an email address, web hosting space, etc. Data to be released only under certain circumstances.

· Might need to prelitigate the merits of the case so as to avoid giving the plaintiff the name of the defendant only to have plaintiff withdraw the case.

J. Recap

1. There exists speech that is proscribable.

2. The ‘net makes this problem more serious.

3. The sites persist over time.

4. We’ve so far considered ways to stop this speech at its source.

III. Filtering.

A. Stopping speech at its destination.

B. Class 2 – IE “content advisor.”

1. Didn’t work. No sites classified. So the behavior of the Advisor is trivial.

C. COPA Commission Report

1. Anything new or interesting?

· Some things we didn’t previously know.

2. Result of COPA (child of CDA). Commission to suggest ways to protect children.

3. Recommendations are for public education (free advertising for companies that make filtering software?), use of filtering software.

D. Demo of blocking software

1. Cyberpatrol installation in Jonathan’s office

2. Blocks some (most?) of the most famous porn sites.

3. Fails to block some porn sites.

4. Block some other sites that aren’t porn.

· thestrippers.com is a rock band.

5. Many mistakes persist across multiple programs (and across time).

6. Why do we care if the software makes mistakes?

· Government needs to avoid blocking speech for content reasons. But funding to libraries is (under CIPA) is to be contingent on use of this type of software.

· Digital divide. Don’t want to wrongly filter the ‘net access of only those who can’t afford other access.

· Need to make sure that certain sites are accessible to certain people (“how to be a gay teen” sites accessible to gay teens, etc.) in public places.

7. Which sites to block?

· Different opinions. http://www.adl.org offers a version of CyberPatrol that blocks only hate speech.

IV. Are we purists about this?

A. We avoid all filtering?

B. Or there are words that can cross the screen such that we want to stop them from doing so?

1. Financial discussion

2. Porn

3. Government criticism (China, etc.)

V. Update on ICANN

A. “Democracy on the ‘net is dead” – Diane Cabell

B. ICANN Board declined to vote positively on every agenda item offering benefits or representation to consumers.

1. Lynn’s “Case for Reform” – http://www.icann.org/general/lynn-reform-proposal-24feb02.htm

2. New structure would retain technical bodies, but end direct end user representation (“At Large”) (which get replaced by government officials – chosen by some notion of consensus of governments).

· OK if governments represent end user interests. But if not, perhaps not.

C. What next?

1. Some directors’ seats will expire in October if nothing is done. We think perhaps they will not be replaced.

2. Auerbach suing ICANN for access to ICANN’s financial and other records – http://www.eff.org/Cases/Auerbach_v_ICANN/20020318_petition.pdf

3. Lapsed domain registrations.

· Notice of renewal may go to the “wrong” address (wrong person, wrong company if registration was outsourced).

· Domain may expire as a result.

· Proposal was to normalize lapse policies across registrars. ICANN Board took no particular action.

· Public interest groups hadn’t been following this. (Though it was listed on the ICANN agenda, publicized via email, etc.)

4. Why worry about government participation in the context of ICANN? We feel fine about that in other contexts.

5. Government representation is undesirable when individuals don’t trust their governments.

6. Zittrain: Worry is that ICANN might come to be run by government officials who are slow, ultimately against innovations, etc. Others like the idea that ICANN is private notwithstanding its public elements. Still others like ICANN as an electronic town hall. US policy since 1997 has been to privatize the function now served by ICANN.

7. Can’t folks point their systems to other roots if they don’t like the US?

· Yes. See also “Keyword Obsolete” Zittrain article and ICANN ICP-3 http://www.icann.org/icp/icp-3.htm

VI. Rating the polling software

A. Right = useful. Left=not

B. 15 in favor, 4 against, several in the middle.

C. Perhaps we’ll setup a wireless base station here.

Ben Edelman

edelman@law.harvard.edu