On November 24th, Professor Eugene Volokh discussed the topic "Crime-Facilitating Speech" as part of the Berkman Center Luncheon Series. Volokh is currently visiting Harvard Law School from UCLA. The following are notes from the discussion.
(Describing instances of crime-facilitating speech:)
Hit Man - a contract murder manual. The publisher is liable for damages, aiding and abetting.
Austin - put bombing information on the web. He pled guilty.
Sometimes it matters that these things happened online, though the problem transcends cyberspace.
Mirror sites for the above - if you Google Hit Man, you find about eight copies.
Links to infringing sites - contributory infringement.
Articles mentioning infringing sites.
Descriptions of security holes, for example in operating systems. OR, how to make a knife on an airplane. They explain not only why it's a hole, but how you can access the hole.
Claims under DMCA - blocking certain types of copy protection, like DeCSS.
PATRIOT Act - it's often overstated - few matters raise constitutional problems. One of them that does cause problems is subpoenaing records (the law doesn't specifically say library records); it prohibits revealing the existence of a subpoena or wiretap. They don't want people to avoid being caught; if a librarian is outraged by a subpoena he cannot talk about it, tell a newspaper, etc.
Progressive/H-bomb instructions, sailing dates of troop ships - don't want people to know these secrets, because people are already looking for troop ships.
You can make a case for restricting all of this speech.
(Definition of Crime-Facilitating Speech)
Speech or expressive conduct (such as flashing your lights to warn of a cop nearby) - either intentional or not, which makes easier committing a crime, a tort, an act of war, suicide, or escaping punishment.
Aiding and abetting: a burglar giving advice on burglary, or a lookout (could be conspiracy, but not always). This is facilitation of planned crimes, not necessarily advocating the commission thereof.
Supreme Court has not confronted this issue. Could create an exception for speech that is recklessly or knowingly crime facilitating - does the Hit Man publisher know a crime will be committed?
The above examples: all know a crime could be facilitated, maybe all should be restricted, but it's not clear, for example, security hole description.
Could focus on intent. Are we comfortable with the courts deciding this? For treason, intent is required, not just knowledge. Mirror sites probably have no intent, but the creators feel that the information is important. Hit Man - 13K copies were sold - who bought them? "Armchair soldiers of fortune" - fantasy, curiosity, research - does Palladin Press really want more contract killings? They have knowledge, but no intent.
Descriptions of security holes? usually no intent.
Subpoenas - usually not but possibly - someone wanting to stop searches.
Progressive/H-bomb - no intent.
Lookouts usually have intent. Advice-giving burglars don't always have intent - I wish you wouldn't do this, but if you really need to, here's how.
Intent does not serve as a good sorter.
A mirror site is not different from the original in value or harm - it's easy to distribute without intent. The Internet makes access easy.
Bomb information - how is it framed? Does it have informational value, like a textbook, for people who are curious, or want to learn chemistry? A mirror site has the information on the original site and also information about a case.
With burglar advice and lookouts, it's not useful, it's a small audience. With Hit Man, it's for curiosity, entertainment - is entertainment enough?
Many of these should not be punishable unless the audience is small.
Publication of passwords, social security numbers - virtually no usefulness.
Professor Terry Fisher: Analogy to post-Sony standard. Contributory copyright infringement - reduce it to a simple, graspable test. Often inclined to compare intensity of concerns - threat, importance of noninfringing uses? Apply that here. Magnitude of crime v. benefit. The language you used is utilitarian - net impacts on social welfare. But it's first amendment - what about rights?
EV: Rights are rights because we think having them is better. Speech is utilitarian except for self-expression. Self expresson has been powerful in only a few cases. Lies, threats; impulse to punish these shows utilitarianism. There are problems with this - judges cannot balance very well. No scale for value vs. interference in criminal investigation. Categorical balancing - need rules distilled from analysis. No value, or extremely dangerous is punishable. What about somewhere in the middle? VCR's, guns, drugs are dual-use materials. Distributor can't know who will use it for what. Close analogy with copyright.
Ben Walker: Wondering about intent with links, and with Austin. His site really only had a link to the bomb information.
EV: There was no trial because he pled guilty. He was an anarchist, if you put it in context, that was enough. Often you can find intent by information, embellishment, presentation, what else is said.
John Palfrey: He admitted it.
EV: In his guilty plea. I'd like to see where he said it first.
Diane Cabell: Suppose a bank has a list of ATM's online for legit purposes. Does using it for evil when it's posted legitimately make a violation? Difference between the way you distribute it as opposed to what the content is?
EV: Most are not novel content. Collations of material can be useful; the collation can lend credibility. Maybe the focus shouldn't be intent, but knowledge that it is being distributed in a way that is appealing to criminals. Precedent: Ginzburg obscenity case. Dual use item stressing harmful use, harmful users will use it.
Seth Finkelstein: Spamware is similar.
EV: Yes, dual-use.
David Abrams: What about the Wayback Machine that just gathers info?
EV: They have no knowledge - they're not liable until they know.
DA: It's not knowledge just being aware that it could happen.
EV: No, knowing that chances are you'll pick up something illegal along the way isn't knowledge.
JP: How do you write up that some examples are OK and some are bad?
EV: Divide into speech to small audience of criminals defined by likelihood of criminal act based on speaker's perception, or to public but virtually no lawful use (like passwords and SSNs).
Professor Jonathan Zittrain: Would your standard differ to limit tort recovery as opposed to crime?
EV: 1st amendment rule - rules for speech are enforced the same in tort as criminal law. The line between civil and criminal is not that important. Civil court can issue injuctions that are enforced in criminal court. A limit to compensatory damages is a deterrent, but just the right amount.
JZ: Prior restraint?
EV: Permanent injunctions are not prior restraints. Preliminary injunctions are - they are entered before a finding on the merits of the case.
??: Aftermath of 9/11 - widespread academic analyses of vulnerabilities in the infrastructure, etc. Findings were reported, presented, published. Does science make this positive? What about the concerns about security? IF the source or nature is scientific, does that change it?
EV: Not an easy position to defend. Abstract scientific experimentation should be communicable. If you ban cloning, do you ban information on cloning? Speech that has an eye toward policymaking - are our airports vulnerable? We'd like to know. Substantial value, often linked to political debates. How harmful is it? How do we balance it?
Professor Charles Nesson: Nuremberg Files - publication of names of abortion providers - a threat case. After one was killed, they crossed him off the list.
EV: Names and addresses of abortion providers, boycott non-compliers - how about witnesses? Expose them to harm on the part of the criminals. Abortion providers - lots of reasons to reveal their information. Potentially valuable and harmful. Newspapers should not be liable for publishing names of witnesses.
TF: A few states have address confidentiality statutes - things like DMV registration, have to keep addresses confidentially for victims of domestic violence so they can remain concealed from their batterers. The state has taken a position. It's not leak proof - if they're still in the area, they can be spotted. "Father's rights" groups want to systematically get this info and make it public. A criminal prohibition against circumvention here?
EV: One reason you are allowed to print people's addresses is the right to protest in their neighborhoods. Other than that, there's no valuable use. A general ban on publishing addresses will not be constitutional. But the victims - what's the claim? This person has a restraining order, the husband can say she lied, etc. - should a demonstration be legal? So rare that harm outweighs benefits? How much value v. harm? Viewpoint-based judgment=bad.