Hot-tempered police offers, pushover judges, and vague laws make for a dangerous combination. In July, a controversy erupted in Renton, Washington (a Seattle suburb) when the town’s police department launched a legal assault on an anonymous YouTube user for merely uploading a few sarcastic videos poking fun at the department’s scandals.
In an op-ed in The Seattle Times, Nicole Ciandella and I explain what happened in Renton and discuss the saga’s implications for constitutional rights in the digital age:
According to Washington state law, a person is guilty of criminal “cyberstalking” if he makes an electronic communication using lewd or indecent language with the intent to embarrass another person. In other words, a Washingtonian who creates a raunchy email message, blog post or Web video to embarrass a foe isn’t just playing dirty; he’s technically breaking the law. One YouTube user recently learned this lesson the hard way.
Last month, the scandal-ridden Renton Police Department launched a criminal cyberstalking investigation against a YouTube user known only as “MrFuddlesticks.” The user had uploaded a series of lewd, animated videos poking fun at recent allegations of wrongdoing by Renton police officers. In one video, a character talks about his civilian superior’s lack of law-enforcement experience; in another, characters discuss the impropriety of a police officer who slept with a murder suspect.
Even though none of MrFuddlesticks’ videos mention the city of Renton or any police officers by name, Renton police managed to convince a county judge to issue a warrant to compel Google, YouTube’s parent company, to disclose identifying information about MrFuddlesticks’ accounts, including credit-card details and even contents of Gmail messages.
You can read the rest of the essay here. (For more on the controversy, see Jacob Sullum at Reason’s Hit & Run; also see Mike Masnick at Techdirt. For an exploration of the case’s constitutional implications, see Eugene Volokh at The Volokh Conspiracy.)
Here on the TLF, we’ve repeatedly cautioned lawmakers about the dangers of criminalizing cyberstalking (1, 2, 3, 4). Back in 2006, CNET’s Declan McCullagh explained why all Internet users should be worried about vague, overbroad cyberstalking laws. As the troubling actions of Renton’s finest illustrate, the potential for such laws to be abused is very real. Let’s hope lawmakers in Washington and in the numerous other states with cyberstalking laws on the books take a hard look at their laws.
My latest Mercatus Center white paper is entitled “Kids, Privacy, Free Speech & the Internet: Finding The Right Balance.” From the intro:
Concerns about children’s privacy are an important part of [the ongoing privacy debate]. The Children’s Online Privacy Protection Act of 1998 (COPPA) already mandates certain online-privacy protections for children under the age of 13. The goal of COPPA was to enhance parents’ involvement in their children’s online activities and better safeguard kids’ personal information online. The FTC is currently considering an expansion of COPPA, and lawmakers in the House of Representatives introduced legislation that would expand COPPA and apply additional FIPPS regulations to teenagers. Some state-based measures also propose expanding COPPA
While well-intentioned, efforts to expand privacy regulation along these lines would cause a number of unintended consequences of both a legal and economic nature. In particular, expanding COPPA raises thorny issues about online free speech and anonymity. Ironically, it might also require that more information about individuals be collected to enforce the law’s parental-consent provisions. There are better ways to protect the privacy of children online than imposing burdensome new regulatory mandates on the Internet and online consumers. Education, empowerment, and targeted enforcement of unfair and deceptive practice policies represent the better way forward.
The paper can be downloaded on SSRN, Scribd, or directly from the Mercatus website at the link above.
Republished from the Daily Caller
U.K. Prime Minister David Cameron has declared “everything necessary will be done to restore order” in Britain’s riot-racked cities. With respect to the right honorable gentleman, what distinguishes free from unfree societies is not order, but ordered liberty. As the great Tory philosopher Edmund Burke taught, reconciling liberty and order is the fine art of democratic statecraft. Tweaking that balance as technology evolves requires the most careful and judicious deliberation. Only where cooler heads prevail can ordered liberty thrive.
Cameron’s government has hesitated to escalate physical force with rubber bullets and water cannons, lest they lend moral sanction to the brutal tactics used by China and in the Middle East to suppress dissent. Yet however noble his intentions, Cameron could do more to undermine ordered liberty with “bloodless” measures targeting social media services like Twitter and Facebook, and improperly using photo identification.
Cameron, who championed Internet-driven revolutions in Egypt and Tunisia, told Parliament that the “free flow of information can be used for good, but it can also be used for ill.” His vague response: “We are working with the police, the intelligence services and industry whether it will be right to stop people communicating via these websites and services.”
So far, the only clear call for shutting down social media outright came from a Labour MP, not Cameron’s Tories. David Lammy, who represents the London neighborhood where rioting began, has demanded the suspension of BlackBerry Messenger (BBM) service for “helping rioters outfox Police.” Such a response befits Beijing, not Britain, the birthplace of ordered liberty.
Free societies can and should silence those who incite acts of violence — but not by shutting down speech platforms for all users. Even America’s speech-protective First Amendment allows punishment of speech that is “directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” That standard protects legitimate expression without preventing prosecution of those individuals stoking and organizing riots. The same standard should determine when government may properly force social media systems to take down seditious posts, photos and videos. Continue reading →
NPR science correspondent Shankar Vedantam had a great spot on NPR’s Morning Edition today about the disputes among social scientists over the impact of violent video games on kids. [“It’s A Duel: How Do Violent Video Games Affect Kids?”] You won’t be surprised to hear I wholeheartedly agree with Texas A&M psychologist Chris Ferguson, who noted in the spot:
Ferguson says it’s easy to think senseless video game violence can lead to senseless violence in the real world. But he says that’s mixing up two separate things. “Many of the games do have morally objectionable material and I think that is where a lot of the debate on this issue went off the rails,” he said. “We kind of mistook our moral concerns about some of these video games, which are very valid — I find many of the games to be morally objectionable — and then assumed that what is morally objectionable is harmful.”
I’ve written about Ferguson’s work and these issues more generally many times over through the years here at the TLF. Here are some of the most relevant essays:
In these essays, I’ve tried to make a couple of key points about the social science literature on “media effects” theory: Continue reading →
Today is the 33rd anniversary of the Supreme Court’s landmark First Amendment decision, FCC v. Pacifica Foundation. By a narrow 5-4 vote in this 1978 decision, the Court held that the FCC could impose fines on radio and TV broadcasters who aired indecent content during daytime and early evening hours. The Court used some rather tortured reasoning to defend the proposition that broadcast platforms deserved lesser First Amendment treatment than all other media platforms. The lynchpin of the decision was the so-called “pervasiveness theory,” which held that broadcast speech was “uniquely pervasive” and an “intruder” in the home, and therefore demanded special, artificial content restrictions.
Back in 2008, when Pacifica turned 30, I penned a 6-part series critiquing the decision and discussing its impact on First Amendment jurisprudence:
In addition to those essays, I brought all my thinking together on this issue in a 2007 law review article, “Why Regulate Broadcasting: Toward a Consistent First Amendment Standard for the Information Age.” Importantly, this could be the last year we “celebrate” a Pacifica anniversary. Earlier this week, on the same day it handed down a historical video game free speech win, the Supreme Court announced that next term it will examine the constitutionality of FCC efforts to regulate “indecent” speech on broadcast TV and radio. Here’s hoping the Supreme Court takes the sensible step of undoing the unjust regulatory mess they created with Pacifica 33 years ago. Speech is speech is speech. Lawmakers should not be regulating it differently just because it’s on TV or radio instead of cable TV, satellite radio or TV, physical media, or the Internet. Continue reading →
Yesterday’s 7-2 decision in Brown v. EMA [summaries here from me + Berin Szoka] was one of those historic First Amendment rulings that tends to bring out passions in people. You either loved it or hated it. But it’s sad to see some critics on the losing end of the case declaring that only greed could have possibly motivated the Court’s decision.
For example, California Senator Leland Yee, the author of the law that the Supreme Court struck down yesterday, obviously wasn’t happy about the outcome of the case. Neither was James Steyer, CEO of the advocacy group Common Sense Media, who has been a vociferous advocate of the California law and measures like it. What they had to say in response to the decision, however, was outlandish and juvenile. In essence, they both claimed that the Supreme Court only struck down the law to make video game developers and retailers happy.
“Unfortunately, the majority of the Supreme Court once again put the interests of corporate America before the interests of our children,” Leland Yee said in a post on his website yesterday. “As a result of their decision, Wal-Mart and the video game industry will continue to make billions of dollars at the expense of our kids’ mental health and the safety of our community. It is simply wrong that the video game industry can be allowed to put their profit margins over the rights of parents and the well-being of children.” Jim Steyer reached a similar conclusion: “Today’s decision is a disappointing one for parents, educators, and all who care about kids,” he said. “Today, the multi-billion dollar video game industry is celebrating the fact that their profits have been protected, but we will continue to fight for the best interests of kids and families.”
Mr. Yee and Mr. Steyer seem to be under the impression that the Court and supporters of its ruling in Brown cannot possibly care about children and that something sinister motivates our passion about the victory. Apparently we’re all just apparently in it to make video game industry fat cats and retailing giants happy! That’s a truly insulting position for Mr. Yee and Mr. Steyer to adopt. Perhaps it is just because they are sore about the outcome in the case that are adopting such rhetorical tactics. Regardless, I think they do themselves, their constituencies, and the public a great injustice by suggesting that only greed could possibly be motivating the outcome in this case. Continue reading →
John Perry Barlow famously said that in cyberspace, the First Amendment is just a local ordinance. That’s still true, of course, and worth remembering. But at least today there is good news in the shire. The local ordinance still applies with full force, if only locally.
As I write in CNET this evening (see “Video Games Given Full First Amendment Protection“), the U.S. Supreme Court issued a strong and clear opinion today nullifying California’s 2005 law prohibiting the sale or rental to minors of what the state deemed “violent video games.” Continue reading →
Adam Thierer has already provided an excellent overview of the Supreme Court’s decision in Brown v. Entertainment Merchants Association, striking down a California law requiring age verification and parental consent for the purchase of “violent” videogames by minors. It’s worth calling attention to two key aspects of the decision.
First, the Supreme Court has clearly affirmed that the First Amendment applies equally to all media, including videogames and other interactive media. The Court has, in the past, often accorded lesser treatment to new media, as Cato’s excellent amicus brief explains [pp 3-15]. This approach, if applied consistently by the Court in the future, will ensure that free speech continues to be protected even as technology evolves in ways scarcely imaginable today.
Second, the Court correctly rejected California’s attempt to justify governmental paternalism as a supplement for parental responsibility [Brown at 15-17]. The existing content rating system and parental controls in videogame consoles already empower parents to make decisions about which games are appropriate for their children and their values. As in the Sorrell decision handed down last week, the Court has rejected what amounts to an opt-in mandate—this time, in favor of letting parents “opt-out” of letting their kids play certain games or rating levels rather than requiring that they “opt-in” to each purchase. This is the recurring debate about media consumption—from concerns over violent or offensive speech to those surrounding privacy. And once again, speech regulation must yield to the less-restrictive alternatives of empowerment and education.
Both these points were at the heart of the amicus brief I filed with the Supreme Court in this case last fall (press release), along with Adam (my former Progress & Freedom Foundation colleague) and Electronic Frontier Foundation Staff Attorney Lee Tien and Legal Director Cindy Cohn. Here’s the summary of our argument in that brief, which provides as concise an overview of our reasoning as we could manage, broken down into separate bullets with quotations referencing the Court’s decision on that point. As you’ll see, the Court’s decision reflected all our arguments except for one, which the Court’s decision did not reach. Continue reading →
The Supreme Court wasn’t playing games with the First Amendment today. With its 7-2 decision in Brown v. EMA, the Court has protected video game creators and players from unconstitutional restrictions on what we can produce and play.
Today’s decision ensures that video games have First Amendment protection on par with books, film, music and other forms of entertainment and will help block other regulatory efforts that are justified by blindly alluding to the rationale that “it’s for the children.” The decision fits nicely alongside an impressive and growing string of recent First Amendment cases from the Court that significantly raise the bar against legislative efforts to regulate freedom of speech and expression.
Quick background: In May 2010, the Supreme Court announced that it would review a California law regulating the sale of violently-themed video games to minors. The case was Schwarzenegger v. Entertainment Merchants Association, but the name of the case changed to after Jerry Brown became governor of California. The Ninth Circuit Court of Appeals had struck down a California law which prohibited the sale or rental of “violent video games” to minors, but California appealed and the SCOTUS took up the issue. [Note: When we were still with the Progress & Freedom Foundation, Berin Szoka and I filed a big amicus brief with the Court in the case along with some folks at the Electronic Frontier Foundation.] By a 7-2 vote, the Supreme Court backed the Ninth Circuit and overturned the California law. Justice Scalia wrote for the majority. Justices Thomas and Breyer dissented.
The crucial holdings in the decision are as follows: Continue reading →
If you’ve been following Reason.com or Reason.tv for the past 48 hours you will know that Jim Epstein, a Reason TV reporter, was one of two journalists arrested Wednesday for videotaping a meeting of the Washington D.C. Taxi Commission.
Epstein and Pete Tucker, who blogs for TheFightBack.org, a site that spotlights local D.C. issues that affect minorities and low-income residents, were reporting from what was expected to be contentious meeting as the Taxi Commission was set to address a plan to introduce a medallion system for the District. The proposal had generated considerable opposition from the city’s large base of cab drivers, many of whom attended the meeting to voice their opposition. They essentially believe a medallion system will concentrate cab ownership among a handful of large fleet operators and likely result in the loss of their livelihood.
The arrests were regrettable all around. Epstein’s video, which shows Tucker, dressed neatly in a white shirt and tie, being handcuffed and led away, captures a deeply uncomfortable “it-can’t-happen-here” moment. Epstein was arrested next. Epstein’s video and statement can be found here.
Aside from the fact Epstein and Tucker were released a few hours later, the best thing that can be said is that the arrests were ordered by someone who can charitably be described as a low-level local government functionary, namely Dena Reed, interim chairman of the Taxi Commission. But that doesn’t excuse it. Reed emerges from this affair looking like a third-grade hall monitor who’s allowed that modicum of authority to go to her head.
Continue reading →
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