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.

Download this week's slides (PDF)

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

In light of the assignment due today, I thought people would enjoy some great (and surprisingly insightful) web comics: citogenesis extended mind the problem with Wikipedia Wikipedia Protester

The first is especially pertinent, at least for my rule. BlakeGeno 21:41, 7 February 2012 (UTC)

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.

The CDA Section 230 is a very crucial starting point of discussion for nowadays legal online processes. As John Palfrey exposed, time has passed and different situations have happened since the creation of it, and it's likely that those who created it didn't anticipate the immunity provided by this document. Although I agree with Adam that Section 230 has been crucial to the success of the Internet, I feel inclined to support John Palfrey in his ideas of re-examine it. He provides strong arguments to support his ideas, saying for example that although it would be less speech and innovation opportunities, it is a trade-off that has to be made. Since in some cases it is relatively easy to change from an online distributor to a online publisher, shielding intermediaries, I think Section 230 has to be changed. Also, I like John Plalfrey's idea that the great innovation would be present, in terms of technical safety measures to protect kids. Although in the article he referred to kid's safety, I believe this idea can be extended to the other online legal discussions. Fabiancelisj 20:57, 7 February 2012 (UTC)

@Fabiancelisj: I have to disagree with you on that point about Section 230 being the major reason for the success of the internet. BBSes and the minitel were extremely successful. Back in 1994, when I got my 1400 baud modem, I would love to call up AOL, or CompuServe. And I think that the world was just waiting for the internet to really explode on to the scene -- it really wanted it to happen. I remember AOL allowing users to go on to the internet, what a trip that was. At that time you had to connect through a University, or through a service like AOL or eWorld. So, I don't think that Section 230 had much to do with the success of the internet. I see it as more of something that was waiting to happen regardless. Now, in terms of timing, and the new world order 9/11 fits directly in place -- particularly when it comes to sidestepping protocol and established laws. I see Section 230 changing with that trend. Call it the Wal-Mart, Subway, McDonals, etc. trend, like so fifteen minutes ago. So, we went from a controlled environment like AOL which was in your home town with your local provider to the internet, to be given total freedom, only to go back to control with sites like Facebook and Google. Go figure. Just Johnny 06:33, 14 February 2012 (UTC)

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: "I believe that the method by which these attacks were initiated were a bit more technically complicated than that." Interesting point. I tend to think that it is human nature to assume things automatically, and not always true. Who is to say who these hackers are? For instance, antivirus software distros regularly put out viruses to perpetuate the need to buy antivirus software. They could be anyone, and really used for any reason. I just have to laugh at the people who simply believe what they are told through the media. Just Johnny 06:20, 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)

@BlakeGeno: Interesting point about regulating speech online. I think what we are getting at is targeting dissidents. Primarily, with sites like WikiLeaks, there is a bit of a double standard at work. Just Johnny 07:00, 14 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)

The group Anonymous has been followed closely by law enforcement officials around the globe. In fact, on February 3, 2012, Anonymous posted a conference call between the FBI and Scotland Yard discussing the group’s members and the response by law enforcement. It seems there is an organized global campaign to identify and arrest Anonymous members that are participating in “hacktivism”.

A DDoS attack works by overloading servers and thus forcing them to become unresponsive. It is not that Anonymous has millions of followers sending these requests to various websites, but that Anonymous is mimicking legitimate requests. Anonymous uses an open source application called Low Orbit Ion Cannon (LOIC) to accomplish DDOS attacks. Recently, a LOIC application has been written in JavaScript, allowing web browsers to run the software without any downloads. This allows Anonymous to use the resources of unsuspecting and non-committing users to accomplish their DDoS attacks.

This is what I believe to be the crux of the problem. That is, as a hacktivism organization, does Anonymous have the right to use unsuspecting Internet users to accomplish their goals? Anonymous likens their actions to sit-ins during the civil rights movement but everyone who sat in made the conscious choice to participate. That is not the case today with Anonymous.

Even though there is more skill required for a DDoS attack than participating in a sit-in as protestors did during the civil rights movement, I don’t think that knowledge barrier is a justification to take advantage of a user’s resources that are not actively protesting with your organization.

I don’t think that Anonymous would be as successful if they did not take advantage of other users not affiliated with their group. By definition of a DDoS, you need massive resources to take down a website. In contrast, a sit in can be effective with a handful of protestors.

While Anonymous needs the resources of others to have successful DDoS attacks, I don’t think that alone negates the activism they participate in. A successful DDoS requires massive resources. Without pooling bandwidth from multiple users, the DDoS would not be successful. The fact is that Anonymous acquired the bandwidth and directed it at targeted servers to participate in the activism they deem worthy. I don’t think we should claim that their group is any less of a protest organization because they don’t have the millions of members required to produce DDoS attacks. chrism February 7, 2012 19:33 UTC

While I had written a lengthy response to the Anonymous article, unfortunately, @chrism explained a lot of what I had written. However, let me go further and state that Anonymous is not the organization that it is purported to be. While tools like LOIC enable greater numbers to participate in DDoS attacks, each attack is not an organized effort. The members of Anonymous do not necessarily know one another, they do not have to speak the same language, nor even live in the same country. Any individual can be a member of Anonymous so long as they have a computer and an internet connection. The mechanics of their operation is fairly simple once understood. Using message board services like 4chan, individuals are able to anonymously suggest sites for attacks. Once a site is agreed upon, which usually relates to the suppression of freedom on the internet, such as PayPal, who gave in to the pressures of cutting off Wikileaks, or the MPAA and RIAA after MegaUpload went under, those anonymous individuals use an anonymizing services such as Tor, LOIC and others to make their attacks. Then someone somewhere uses the name Anonymous to claim the attack.

It's simple in its design, and since the internet is a globally connected community, members of Anonymous can live anywhere there is an internet connection, and do not necessarily have to be American. Even still further, members of Anonymous do not have to know one another, nor do they have to be experienced computer hackers, or for that matter, good at all with computers. They could be a thirteen year old kid who was shown how to use this basic program for simple executions, which might only appear to him as minute acts of vandalism. The repercussions of which, however, are far greater. But it still stand that the group known as Anonymous is a loosely based group of like-minded individuals from anywhere. The group is exceptionally fluid, and while Commander X claims he orchestrated attacks, in reality it was the collective consensus of unaffiliated individuals that made it happen, not some organized crime syndicate.

@chrism, while I do like what you have added, it needs to be clarified that a huge number of individual computers had to have been used for the DDoS attacks to be effective. I don't disagree that LOIC was used. But I wish to broaden my horizons to areas outside of the U.S. to the countries that would like to see American Corporations fail. I'm not suggesting that LOIC and DDoS attacks are orchestrated by foreign military cyber-warfare divisions, but I could see a bunch of Europeans or Asians not caring if an American corporation was taken out, so they go ahead and cooperate with the Anonymous attack. Nthib 20:22, 7 February 2012 (UTC)

I found the arguments between Palfrey and Thierer most interesting in this week’s readings. I agree with Palfrey that a hands-off approach to online security by the government is of concern. I feel that there should be more regulation to protect people’s privacy and child safety online. However, how and to what extent should we fiddle with Section 230? So, I am torn between these two views and also agree that online restriction would lead to less innovation. I think that the consumers, such as the parents, can take more initiative to monitor and protect their children’s online safety. For example, they can restrict a child from using Facebook if they feel that he/she may be harmed for visiting social networking sites. Qdang 20:44, 7 February 2012 (UTC)

I enjoyed reading David Ardia's explanation of Section 230 of the Communications Decency Act and how it impacts online speech. Judge Ain's response to the Stratton Oakmont decision was shocking to me. To suggest that Prodigy would be better off limiting their oversight on material that is posted to the site for fear of liability goes against what the CDA was fighting for - to protect children from harmful material on the Internet. Without a proper legal backing intermediaries do not have an incentive to protect children from harmful material for fear of liability. It appears that Section 230 was written in such a way to protect intermediaries not to provide oversight for environments created by intermediaries. User: Hds5 16:43, 7 February 2012 (UTC)

What a difficult subject, that of how much freedom of speech we should have in society, and how much responsibility that implies. On the one hand, if all "whistleblowers" are suffocated, society is in trouble, and in fact, the US would not exist, possibly, but if there is a free for all on speech which does hurt and is used irresponsibly, this is not good for any society. The question come up about who can judge this. Possibly, the solution is not about an "who" can judge, but what form of law can judge. People can be arbitrary, but laws are meant to be objective. Personally, I do believe what Jesus said about everything boiling down to two commandments: Love God and love others as much as you love yourself; but in practice, we just don't seem to have that much love to do it on a daily, massive scale, so we need to have a lot more laws, at least for now, at our stage of maturity. I think it is better to restrict some, so that there is not a free-for-all which degrades society, but there must be care to allow for freedom of opinion, belief, and within guidelines, freedom of speech. Mike 21:55, 7 February 2012 (UTC)

I would like to know more or hear anyone's input on why these networks need to be regulated in the first place. Is it because the network connections travel across state lines? What about a network that is operated inside a state used by a native of that state? If these networks/businesses and the lines that connect them are all private companies why are they subject to regulation, for the most part, in the first place? Brendanlong 22:26, 7 February 2012 (UTC)

CDA 230 provides too much immunity to intermediaries, almost encouraging them to be negligent. I agree with Palfrey that an intermediary's immunity is extended too broadly. I don't think it would stifle innovation if CDA 230's immunity was extended more narrowly. It would most likely result in less negligence on behalf of the intermediary (which, according to Palfrey, is happening to a small degree already). Aberg 22:30, 7 February 2012 (UTC)

February 7: Regulating Speech Online

“The US Treasury Department therefore has the right to issue administrative subpoenas (administrative orders) to receive information helpful in the fight against terrorism. Those subpoenas are secret and are not subject to review by any judge or jury (Meyer and Miller 2006).”

Just how the drawn-out the bombing of the World Trade Center in New York City will last on the public consciousness within the United States has yet to be seen. I think that most people – particularly within Europe – would like to see it buried along with the villain, Bin Laden. I think that people are tired of living in fear, and are starting to wake up to the fact that its just a bunch of BS and there really is no terror except for what is manufactured. However, US intelligence would in all likelihood wish to see it last forever. And as far as extending powers is concerned, it has proven itself to be quite effective.

What I think is really compelling about the SWIFT Affair is that there are very different opinions when it comes to surrounding the legality of United States authorization outside of United States jurisdiction. I see a clear and distinct transition from the early part of the article toward the cutthroat post 9/11 display of action.

After reading the article, I found that there were three primary questions that stuck out in my mind as problematic.

First of all, I think about the legitimacy of extending United States law into European countries. Second, I think about the problems associated with unrestricted enforcement – that is distinctly once sided, and is designed to be that way. And, most of all, I think about United States intelligence extending its powers into new jurisdictions by way of strategic historical legal precedent.

Just what happens in the meantime between this transition to the new world order is what seems most problematic. Who is left out in the cold, and who gets to ride high on the new wave?

A bunch of rubbish: So what's it all about anyway? Have another reach ...

The primary concern that I think a lot of people have with The Borg in Star Trek is that it tries to assimilate everything in its presence and leaves everything that is assimilates as completely devoid of its original state of being. However, the primary problem that I think a lot of people have with “Americanization”, or “globalization” is that a lot of people do not want things to change wherever they are in the world. For the most part, they are used to the way that things are, they like things in their geographic area, and so there is a bit of resistance when it comes to readjusting cultural norms. However, one of the main ways that we can change norms is through the media. By controlling the media consumption of a particular population, we can slowly shape and change cultural norms. Other institutions – such as government, educational, as well as religious pillars all shift when new norms are planted by way of mass media consumerism. The process slowly continues with each new generation. And there is resistance within older generations. Particularly within Europe, globalization has hit a bit of a halt. Although progress within these regions will likely continue through United States intelligence, there is a bit of a lag primarily due to language as well as strong religious barriers set in deep-rooted cultural history. The Vatican, for instance, controls quite a considerable amount of the population of the planet through religion. And the physical reality set in the landscape of most of Europe is very rich, full of art and architecture -- which plays a strong role in dictating cultural behavior. Euro-Disney has remained open, even as the French don't seem all that interested in it. Those who do not watch television, listen to the radio, play video games, watch films, or talk about sports are basically immune. For those people -- we have Google, and now Facebook. Great Britain still has power, although not what it used to be after colonization and World War 2. And the U.S. – as US intelligence would have us accept – has picked up the torch, so to speak, from Great Britain. For the most part, it seems to become a world's strongest man competition when it comes to the command of power across legal boundaries.

"In 1976, the US Supreme Court ruled that Americans have no constitutional right to privacy over their banking records. Following that decision, US Congress passed the 'Right to Financial Privacy Act' in 1978 to re-establish privacy rights for US bank customers. (Connorton 2007)"

What I am really wondering about here is whether or not, if ever, most of these post 9/11 laws are going to be retracted.

"US lawyers have nevertheless tried to sue SWIFT for violating their privacy rights under the Financial Privacy Act. Ian Walker and Stephen Kruse filed a class action lawsuit in a federal court the same day that the New York Times revealed the program, on 26 June 2006. They claimed that the US federal executive branch violated their privacy rights by obtaining their financial data through the SWIFT network."

I do see a problem in that these new and expansive post 9/11 surveilance powers do conflict with pre-existing privacy laws.

Just Johnny 07:13, 14 February 2012 (UTC)