Regulating Speech Online

February 7

The Internet has the potential to revolutionize public discourse. It is a profoundly democratizing force. Instead of large media companies and corporate advertisers controlling the channels of speech, anyone with an Internet connection can "become a town crier with a voice that resonates farther than it could from any soapbox." Reno v. ACLU, 521 U.S. 884, 896-97 (1997). Internet speakers can reach vast audiences of readers, viewers, researchers, and buyers that stretch across real space borders, or they can concentrate on niche audiences that share a common interest or geographical location. What's more, with the rise of web 2.0, speech on the Internet has truly become a conversation, with different voices and viewpoints mingling together to create a single "work."

With this great potential, however, comes new questions. What happens when anyone can publish to a national (and global) audience with virtually no oversight? How can a society protect its children from porn and its inboxes from spam? Does defamation law apply to online publishers in the same way it applied to newspapers and other traditional print publications? Is online anonymity part of a noble tradition in political discourse stretching back to the founding fathers or the electronic equivalent of graffiti on the bathroom wall? In this class, we will look at how law and social norms are struggling to adapt to this new electronic terrain.

Assignments

Assignment 1 due

Readings

• Citizen Media Law Project Legal Guide: Defamation
• David Ardia, Free Speech Savior or Shield for Scoundrels: An Empirical Study of Intermediary Immunity Under Section 230 of the Communications Decency Act (Parts I & II)
• Communications Decency Act § 230
• John Palfrey and Adam Thierer, "Dialogue: The Future of Online Obscenity and Social Networks," Ars Technica, March 5, 2009, read all
• Wikipedia entry on Funding Evil (focus on "libel controversy" section)
• The SWIFT Affair

Optional Readings

• David Margolick, "Slimed Online," Portfolio.com, February 11, 2009, read all
• Larger Threat is Seen in Google Case NYT
• Wikipedia on Reno v. ACLU
• Lawrence Lessig, Code 2.0, Chapter 12: Free Speech
• David Ardia, Reputation in a Networked World: Revisiting the Social Foundations of Defamation Law (Part III)

Class Discussion

http://www.cbsnews.com/stories/2011/07/19/national/main20080685.shtml

During our last class we discussed the hacking group Anonymous. One of the concerns raised in the class addressed ramifications for hacking and the belief that these types of attacks are not pursued by law enforcement. As it turns out the FBI has been arresting members of this group and seizing their equipment. In addition to the written story there is a video interview (link above) of the self-proclaimed leader of Anonymous, Commander X, where he likens this groups activity to the sit-ins during protests in the 50’s and 60’s when the nation was advocating for civil rights.

Two (conflicting) thoughts:

1. I appreciate the analogy and disagree with the announcer who dismisses the likeness out-of-hand.

2. I would agree with the analogy if, indeed, each “request for information” were being initiated by a separate and distinct person exercising their individual right to voice their concern.

These computers, servers, and platforms are designed to accommodate millions of simultaneous, legitimate, requests. I don’t believe that there are millions of Anonymous members initiating these requests, rather a handful of protesters mimicking multiple users. So in this case the analogy fails as “the people” are not adequately represented through a First Amendment protection to assemble. A more accurate analogy would be that two or three individuals went to Woolworths lunch counter to “sit-in” but each brought with them 150 manikins with made-up names, claiming that these were their friends in support. Lastly, I’m not sure that I completely buy the idea that their hacking methods are simply an overwhelming volume of requests for information. I believe that the method by which these attacks were initiated were a bit more technically complicated than that.Louiscelli 13:24, 1 February 2012 (UTC)

@Louiscelli, nice find on that article. I agree with you that it seems a bit disingenuous for hackers like Anonymous to claim that they have very broad protest-type support when in fact most of their major actions are committed by a small and central group. As a devil's advocate thought experiment though, is this simply a difference of opportunity? That is, it's physically easy for almost any person to walk into a diner and conduct a "sit-in" to support their views. It is physically (in terms of technical skill) much much harder to have the hacking skills necessary to do the things Anonymous has been doing. It seems possible that their protests are conducted by such a small group of people simply because those are all of the people who possess those skills, and not because those are all of the people who support the protest. From a purely social protest perspective, their point is no less theoretically valid simply because it is one that is hard to physically make.

From the readings, I really enjoyed the dialogue on online obscenity/CDA230/possible increased liability for online service providers; I found myself agreeing largely with Thierer that increased liability would be a bad Pandora's Box to open. Palfrey says that he agrees many cases would be brought from every conceivable direction if liability for providers was opened up wider, but he counters that most providers would be fully protected from liability even with the practices they follow now and extensive litigation could also have some positive effects as a motivator. My concern with this argument is that cases can be (and sometimes are) brought for bad reasons, knowing they will fail, but a plaintiff with massive wealth can still keep them alive almost indefinitely, at great expense (in time, money, and bad press)to the defendant. Especially in a clash between the wide-open individual innovation possible on the internet and various wealthy real world entities that have agendas to pursue, this sort of legal bullying could stifle all but the most established and wealthy internet innovators, seriously harming the most positive aspect of the internet.

Funding Evil's various details provided an interesting look at how the problem of different geography and law systems can become tangled up and sometimes abused when internet content is at issue. I'm very troubled by the idea that a wealthy individual or group could always create themselves some business interests in a country with very harsh libel standards and then use that as a basis to go after people online through that favorable court system. On a related international-type note, I'm amazed that I've never heard of SWIFT before or realized how thoroughly it controls information about the vast majority of global finance. Well done them for so successfully pursuing their goal of staying out of the headlines, and amazing that it was possible in this internet age. Don't want to turn this too political, but it amused me that American conservatives/Republicans were outraged at the NY Times publication of info about this network and how the U.S. was using it to track terrorist financing but not at all about SWIFT itself... Isn't a massive, monolithic, European entity that almost fully controls an entire aspect of life even for Americans the exact thing every Republican presidential candidate has been railing against when the subject is changed from "global finance" to "health care"? AlexLE 19:55, 4 February 2012 (UTC)