My latest Forbes column is entitled “With Freedom of Speech, The Technological Genie Is Out of the Bottle,” and it’s a look back at the amazing events that unfolded over the past week in the U.K. regarding privacy, free speech, and Twitter. I’m speaking, of course, about the “super-injunction” mess. I relate this episode to the ongoing research Jerry Brito and I are doing examining the increasing challenges of information control.
I begin by noting that:
When it comes to freedom of speech in the age of Twitter, for better or worse, the genie is out of the bottle. Controlling information flows on the Internet has always been challenging, but new communications technologies and media platforms make it increasingly difficult for governments to crack down on speech and data dissemination now that the masses are empowered. The most recent exhibit in the information control follies comes from the United Kingdom, where in the span of just one week the country’s enhanced libel law procedure was rendered a farce.
I go on to explain how Britain’s super-injunction regulatory regime unraveled so quickly and why it’s unlikely to be effectively enforceable in the future. Read the entire essay over at
Forbes and then also check out Jerry’s Time TechLand editorial from last week, “Twitter’s Super-Duper U.K. Censorship Trouble.” I also just saw this piece by British defamation expect John Maher: “Law Playing Catch-up with New Media.” It’s worth a read.
By Adam Thierer & Berin Szoka
Short but very important essay here from Santa Clara University Law School Prof. Eric Goldman about calls to alter Sec. 230 of the Communications Decency Act (CDA) to address concerns about online harassment. Generally speaking, Sec. 230 immunizes online intermediaries from punishing liability for the content that travels over their networks / services. Specifically, Sec. 230 stipulates that “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” In other words: Don’t shoot the messenger!
As we’ve noted here before, it is probably not an overstatement to think of Sec. 230 as the very cornerstone of Internet Freedom, since it makes possible an online “utopia for utopias,” to borrow a phrase from our favorite modern political philosopher, the late Robert Nozick. Without Sec. 230, intermediaries would likely be forced to shut down many avenues of communication and would have to become deputized conduct and morality police for every cyber-street corner.
Goldman, America’s leading expert on Sec. 230-related jurisprudence, correctly notes that, “Frequently, § 230’s critics do not attack the immunization generally, but instead advocate a new limited exception for their pet concern.” He’s got that right. Indeed, we are increasingly hearing calls from numerous quarters these days to “tweak 230” for one pet concern after another. We’ve illustrated some of those concerns in this exhibit.
Deputization of the Middleman http://d1.scribdassets.com/ScribdViewer.swf
Regulatory advocates can be found for each of these issues who like to see the protections afforded by Sec. 230 scaled back by Congress or he courts. But Goldman rightly warns:
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Well, I don’t often get a chance to sing the praises of Hillary Clinton, so let me take the opportunity to loudly applaud her stand on religious defamation policies, which are becoming a growing international concern. According to The Washington Post, while unveiling the State Department’s 2009 Report on International Religious Freedom:
Secretary of State Hillary Rodham Clinton criticized on Monday an attempt by Islamic countries to prohibit defamation of religions, saying such policies would restrict free speech. … While unnamed in Clinton’s speech, the Organization of the Islamic Conference, a group of 56 Islamic nations, has been pushing hard for the U.N. Human Rights Council to adopt resolutions that broadly bar the defamation of religion. The effort has raised concerns that such resolutions could be used to justify crackdowns on free speech in Muslim countries.
Here’s specifically what Secretary Clinton had to say:
some claim that the best way to protect the freedom of religion is to implement so-called anti-defamation policies that would restrict freedom of expression and the freedom of religion. I strongly disagree. The United States will always seek to counter negative stereotypes of individuals based on their religion and will stand against discrimination and persecution. But an individual’s ability to practice his or her religion has no bearing on others’ freedom of speech. The protection of speech about religion is particularly important since persons of different faiths will inevitably hold divergent views on religious questions. These differences should be met with tolerance, not with the suppression of discourse.
Quite right. Thank you, Secretary Clinton, for this bold stand. Freedom of religious worship and expression — including the criticism of religion — is essential. Now, can we talk about your old positions on video game regulation?!
http://c.brightcove.com/services/viewer/federated_f8/1705667530
A terrific Radio Berkman podcast this week on “Adventures in Anonymity” featuring Sam Bayard, a fellow at the Harvard Berkman Center and the Assistant Director of the Berkman Center’s Citizen Media Law Project. Along with host Daniel Dennis Jones, Bayard discusses the intersection of anonymity, free speech, defamation law, privacy, and more. In addition to sorting through the sticky legal and ethical issues, their discussion includes some really excellent historical perspectives on anonymous speech. They also get into the recent “skank” blogger case and the AutoAdmit case. I discussed those cases and some of these issues more generally in these essays:
Ars Technica has just posted the transcript of a friendly debate I recently engaged in with Harvard University law professor John Palfrey about the future of Section 230 of the Communications Decency Act and online liability more generally. Our debate got started last fall, shortly after I penned a favorable review of John’s excellent new book (with Urs Gasser), Born Digital: Understanding the First Generation of Digital Natives. [Listen to my podcast with John about it here.] Although I enjoyed John’s book, I also raised some concerns about his call in the book to reopen and revise Section 230, specifically to address child safety concerns. At the time, John and I were working together on the Berkman Center’s “Internet Safety Technical Task Force” and we decided to begin an e-mail exchange about the future of 230 and online liability norms more generally. The result was the debate that Ars has just published.
In our exchange, I begin by asking John to more fully develop some statements and proposals he sets forth in
Born Digital. Specifically, he and co-author Urs Gasser argue that: “The scope of the immunity the CDA provides for online service providers is too broad” and that the law “should not preclude parents from bringing a claim of negligence against [a social networking site] for failing to protect the safety of its users.” They also suggest that “There is no reason why a social network should be protected from liability related to the safety of young people simply because its business operates online.” Specifically, the call for “strengthening private causes of action by clarifying that tort claims may be brought against online service providers when safety is at stake,” although they do not define those instances.
Using those proposals as a launching point for our discussion, I challenge John as follows:
I’m troubled by your proposals because I believe Section 230 has been crucial to the success of the Internet and the robust marketplace of online freedom of speech and expression. In many ways — whether intentional or not — Section 230 was the legal cornerstone that gave rise to many of the online freedoms we enjoy today. I fear that the proposal you have set forth could reverse that. It could lead to crushing liability for many online operators-and not just giants like MySpace or Facebook-that might not be able to absorb the litigation costs. Could you elaborate a bit more about your proposal and explain why you think the time has come to alter Section 230 and online liability norms?
And John does and then we go back-and-forth from there. Again, you can read the whole exchange over at Ars.
It was a great pleasure to engage in this exchange with Prof. Palfrey and I look forward to what others have to say in response to our debate. I am working on a longer paper looking broadly at the rising threats to Sec. 230 and the increasing calls for expanded online liability and middleman deputization. I will use whatever feedback I get from this exchange to refine my paper and proposals.
The Progress & Freedom Foundation has just launched the new Center for Internet Freedom. CIF offers an alternative to the proliferation of advocacy groups calling for government intervention online by offering timely analyses and critiques of proposals that diminish the vital role of free markets, free speech and property rights. We aim to drive the Internet policy debate in new directions by emphasizing a layered approach of technological innovation, user education, user self-help, industry self-regulation, and the enforcement of existing laws consistent with the First Amendment. Such an approach is a less restrictive—and generally more effective—alternative to increased regulation.
Here are some of the issues I’ll be working on as CIF’s Director in conjunction with my esteemed colleagues Adam Thierer, Adam Marcus, and adjunct fellows:
- Defending online advertising as the lifeblood of online content & services, especially in the “Long Tail”;
- Emphasizing market solutions to problems of privacy protection, especially regarding the use of cookies and packet inspection data;
- Protecting online speech and expression both in the U.S. and abroad;
- Defending Section 230 immunity for Internet intermediaries;
- Opposing online taxation and legal barriers to e-commerce and digital payments, especially at the state and local levels; and
- Ensuring that Internet governance remains transparent and accountable without hampering the evolution of the Internet.
Anyone interested in the long-running debate over how to balance online privacy with anonymity and free speech, whether Section 230‘s broad immunity for Internet intermediaries should be revised, and whether we need new privacy legislation must read the important and enthralling NYT Magazine piece “The Trolls Among Us” by Mattathias Schwartz about the very real problem of Internet “trolls“–a term dating to the 1980s and defined as “someone who intentionally disrupts online communities.”
While all trolls “do it for the lulz” (“for kicks” in Web-speak) they range from the merely puckish to the truly “malwebolent.” For some, trolling is essentially senseless web-harassment or “violence” (e.g., griefers), while for others it is intended to make a narrow point or even as part of a broader movement. These purposeful trolls might be thought of as the Yippies of the Internet, whose generally harmless anti-war counter-cutural antics in the late 1960s were the subject of the star-crossed Vice President Spiro T. Agnew‘s witticism:
And if the hippies and the yippies and the disrupters of the systems that Washington and Lincoln as presidents brought forth in this country will shut up and work within our free system of government, I will lower my voice.
But the more extreme of these “disrupters of systems” might also be compared to the plainly terroristic Weathermen or even the more familiar Al-Qaeda. While Schwartz himself does not explicitly draw such comparisons, the scenario he paints of human cruelty is truly nightmarish: After reading his article before heading to bed last night, I myself had Kafka-esque dreams about complete strangers invading my own privacy for no intelligible reason. So I can certainly appreciate how terrifying Schwartz’s story will be to many readers, especially those less familiar with the Internet or simply less comfortable with the increasing readiness of so many younger Internet users to broadcast their lives online.
But Schwartz leaves unanswered two important questions. The first question he does not ask:
Just how widespread is trolling? However real and tragic for its victims, without having some sense of the scale of the problem, it is difficult to answer the second question Schwartz raises but, wisely, does not presume to answer: What should be done about it? The policy implications of Schwartz’s article might be summed up as follows: Do we need new laws or should we focus on some combination of enforcing existing laws, user education and technological solutions? While Schwartz focuses on trolling, the same questions can be asked about other forms of malwebolence–best exemplified by the high-profile online defamation Autoadmit.com case, which demonstrates the effectiveness of existing legal tools to deal with such problems.
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The latest attack on anonymous online speech comes from Kentucky Representative Tim Couch, who proposed legislation last week that would ban posting anonymous messages online. The bill requires users to register their true name and address before contributing to any discussion forum, with the stated goal of cutting down on “online bullying.”
The right to speak anonymously is protected by the First Amendment, and the Kentucky proposal raises serious Constitutional questions. In Talley v. California, the U.S. Supreme Court overturned a Los Angeles ban on the distribution of anonymous handbills on First Amendment grounds. However, the Court has yet to directly address the question of anonymous speech on the Internet, as few existing laws target online anonymity.
The Kentucky bill comes on the heels of controversy over the growing popularity of JuicyCampus.com, a “Web 2.0 website focusing on gossip” where college students post lurid—and often fabricated—tales of fellow students’ sexual encounters. The website bills itself as a home for “anonymous free speech on college campuses,” and uses anonymous IP cloaking techniques to shield users’ identities. Backlash against the site has emerged, with Pepperdine’s student government recently voting to ban the site on campus.
Under current law, websites like Juicy Campus cannot be sued for user-posted messages. As Adam Thierer mentions in a recent post, Daniel J. Solove of George Washington Law School has offered some insightful analysis on anonymity in the digital age. Solove points out that under the Safe Harbor provision found in Section 230 of the Communications Decency Act, providers are immunized from liability if they unknowingly distribute libelous messages so long as they remove libelous postings upon receiving a takedown request. This issue was further clarified in 2006 in Barrett v. Rosenthal, in which the Court found that website operators are immune from liability when distributing defamatory communications.
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The Technology Liberation Front is the tech policy blog dedicated to keeping politicians' hands off the 'net and everything else related to technology.