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)

RE Louiscelli on Anonymous Article: As far as I know, the basic idea behind the attacks is no different than when any page receives a surge in traffic that crashes their servers. It's coordinated, yes, but so is any form of protest. If that is the case, then I see no problem with the basic idea. How it is carried out however, is much more likely to be troublesome. Again, so far as I know, a botnet attack would be the most likely form of attack. This involves basically conscripting other users computers for the attack. I'm sure there are many other ways to accomplish a similar effect, but I doubt any of them are anything I could approve of, short of installing massive server banks in your basement. Of course, I could be wrong on all counts here.

That leads me to a more general point, which is that whenever it comes to regulating speech online (or even in the real world, much of the time), I on one hand see why some want to tighten the restrictions around speech, at least on the extremes. On the other hand, I don't see any practical (or non-arbitrary) way of drawing a line, or any practical ways of enforcing it that aren't worse than what the restrictions would be seeking to stop. And then I also see the positives, even from information that supposedly "clearly" should not be available.

Take Wikileaks, for example. I can see why the Pentagon wanted to keep the data secret (especially in its raw form). I understand taking legal action against the person who illegally leaked the documents, since it is military law acting on military personnel, in marshal courts. On the other hand, I think that the availability of information on Wikileaks has been a great thing, especially in terms of the very real threat to government of ordinary people learning what is happening out of the public eye. Then, in a practical note, I don't see any way of censoring any part of the network without trampling on what makes it so important. First off, you have so many content generators (even down to tweets) that there's no possible way to get human eyes on every bit, or even any significant amount of, information that would be potentially censored under even the mildest restrictions. Machines don't do a great job at judgement. A computer can't tell the difference between a plot to blow up a government building and a discussion on how overblown fears of terrorism are causing us to lose our civil rights. Then on a more ethical line, there's always the question of who decides what the thresholds are.

On one hand, I see why the government would want to keep information secret; on the other, I don't think they can without stopping valuable whistle blowers. On one hand I realize that copyright holders want to protect their work; On the other, I see how even now, even the little bit of enforcement that is happening hinders fair use and legitimate access. On one hand, I agree that people should be able to sue malicious bloggers; on the other, I don't think bloggers should enjoy any less protection than any other publication. In the end, I just end up seeing the less restricted flow of information as far more beneficial than harmful, and the harms from less restriction as the least evil option. That was the conclusion I came to once again with this week's reading. BlakeGeno 13:28, 7 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)

The articles we were asked to read for this week’s class were extremely interesting and got me thinking on several matters. As a student with a legal background and pursuing a Master’s degree in the field of law, the articles I read were very relevant to my field of study. I enjoyed reading about defamation and free speech in general but what really got me interested were the last three articles. The dialogue between John Palfrey and Adam Thierer regarding the regulation of online obscenity and protection under Section 230 of the Communications Decency Act raised some very valid points on both sides. After reading the whole article I do however feel more close to the points raised by John Palfrey. I personally feel that even though Social Networks and other ISP are not responsible for what other people do in their sites, I feel that obscenity and other issues regarding minors especially would be limited if not eliminate if the site creators were not protected by the CDA. If they felt as if they could possibly be charged with a crime, I am sure that they would make their websites more secure and try to filter the usage of these websites by wrongdoers. For what concerns the Funding Evil article, I feel that the author should have been more careful in regards to her statements since nowadays even though a book, object or any other product is not sold outside a given country, thanks to the internet it is still possible to gain access to it. Her book wasn’t meant to be sold or published in the United Kingdom but somehow people did buy the book and in my opinion she should have thought of that earlier before writing defamatory statements about Mr. Mahfouz. By doing some research on the author I did find out that she is quite an expert on the matter and therefore I am sure there were valid reasons to back up her statements even though they were never proved. Writing something which doesn’t break the law in one country but does in another reminds me of the series of Danish cartoons designed a few years ago where Islam was made fun of, and the reactions that occurred from the middle east where such offense was a violation of their law. The Swift affair however was the most interesting article in my opinion because I was able to learn more about such system but also to learn about what was done by the CIA to fight terror. This summer while I was in a middle eastern country I had the pleasure to meet and spend a week with people from the Canadian Special Forces and some U.S. Government employees and we often talked about ways of fighting terrorism, especially in modern times. What we all agreed on was to eliminate the funds for terrorism by hitting the funders, therefore this article was really fascinating to me in order to understand how the CIA has been working on SWIFT databases in order to do so. What I don’t agree on, however is the fact that the US Government were only allowed to search terrorism cases. I don’t agree because I am confident that much funding is done through drug trafficking and arms dealing, especially since these limits have been publicized thanks to the media. Emanuele 15:58, 6 February 2012 (UTC) For Commander X liken his group’s activities to the “sit-ins” advocating for civil rights is a slap in our faces. There’s absolutely no connection between hacking no matter the cause and civil rights; If the deeds of Anonymous contained a shred of nobility, they would put their faces on media outlets, and their peers would cheer them on. It is my opinion that Anonymous has other ulterior motives in what they do. I am happy to see that the FBI is up to speed with technology, where people and groups like Anonymous are arrested and hopefully prosecuted. Sophia February 6, 2012 10:30 (UTC)