On November 18, the Senate Judiciary Committee unanimously approved the “Combating Online Infringements and Counterfeits Act” (COICA). The bill would enable the U.S. Attorney General to obtain a court order disabling access to web domains that are “dedicated to infringing activities.”
These “rogue websites” are a real problem, as the website Fight Online Theft explains, so it’s a good thing that Congress is working to address them. However, some of COICA’s provisions raise profound constitutional concerns, and the bill lacks adequate safeguards to protect against the unwarranted suspension of Internet domain names, as the website Don’t Censor the Net argues. The bill also doesn’t provide a mechanism for website operators targeted by the Attorney General to defend their site in an adversary judicial proceeding. This week, a group of over 40 law professors submitted a letter to the U.S. Senate arguing that COICA, in its current form, suffers from “egregious Constitutional infirmities.”
To address these concerns, CEI is urging Congress to amend COICA to provide for more robust safeguards, including: Continue reading →
A Nov. 4th report promises new legislation next year “clarifying” this right under EU law, suggesting not only that the Commission thinks it’s a good idea but, even more surprising, that it already exists under the landmark 1995 Privacy Directive.
What is the “right to be forgotten”? The report is cryptic and awkward on this important point, describing “the so-called ‘right to be forgotten’, i.e. the right of individuals to have their data no longer processed and deleted when they [that is, the data] are no longer needed for legitimate purposes.”
This week, we’ve seen reports in both The New York Times (“Stage Set for Showdown on Online Privacy“) and The Wall Street Journal (“Watchdog Planned for Online Privacy“) that the Obama Administration is inching closer toward adopting a new Internet regulatory regime in the name of protecting privacy online. In this essay, I want to talk about information control regimes, not from a normative perspective, but from a practical one. In doing so, I will compare the relativecomplexities associated with controlling various types of information flows to protect against four theoretical information harms: objectionable content, defamation, copyright, and privacy.
From a normative perspective, there are many arguments for and against various forms of information control. Here, for example, are the reasons typically given for why society might want to impose regulations on the Internet (or other communications channels) to address each of the four issues identified above:
Content control / Censorship: We must control information flows to protect children from objectionable content or all citizens against some other form of supposedly harmful speech (hate speech, terrorist recruitment, etc).
Defamation control: We must control information flows to protect people’s reputations.
Copyright control: We must control information flows to protect the property rights of creators against unauthorized use / distribution.
Privacy control: We must control information flows to protect against information flows that include information about individuals.
Again, there are plenty of good normative arguments in the opposite direction, many of which are based on free speech considerations since, by definition, information control regimes limit the flow of forms of speech. For privacy, I discussed such speech-related considerations in my essay on “Two Paradoxes of Privacy Regulation.” But what about the administrative or enforcement burdens associated with each form of information control? I increasingly find that question as interesting as the normative considerations.
Adam and I spent a lot of time on our joint amicus brief with EFF—which Larry has artfully summarized. But Jon Stewart has outdone us both with this witty satire on the case:
A report in the U.K. Telegraph notes that the European Union is seeking to create a so-called “right to be forgotten” online, and has “drafted potential legislation that would include new, unprecedented privacy rights for citizens sharing personal data.” Details are sparse at this point, but according to this new 20-page European Commission document, “A Comprehensive Approach on Personal Data Protection in the European Union,” the EU will be:
clarifying the so-called ‘right to be forgotten’, i.e. the right of individuals to have their data no longer processed and deleted when they are no longer needed for legitimate purposes. This is the case, for example, when processing is based on the person’s consent and when he or she withdraws consent or when the storage period has expired. (p.8)
Much of the discussion during oral arguments was preoccupied with defining the contours of the term “deviant violence.” I was pleased to see the Justices asking some sharp questions about the interpretation of that term for regulatory purposes. In particular, I enjoyed Justice Scalia’s remarks and questions to California Deputy Attorney General Zackery Morazzini, who argued the case on behalf of the state. Scalia said:
I am not just concerned with the vagueness. I am concerned with the vagueness, but I am concerned with the First Amendment, which says Congress shall make no law abridging the freedom of speech. And it was always understood that the freedom of speech did not include obscenity. It has never been understood that the freedom of speech did not include portrayals of violence. You are asking us to create… a whole new prohibition which the American people never — never ratified when they ratified the First Amendment. They knew they were — you know, obscenity was — was bad, but — what’s next after violence? Drinking? Smoking? Movies that show smoking can’t be shown to children? Does — will that affect them? Of course, I suppose it will. But is — is that — are — are we to sit day by day to decide what else will be made an exception from the First Amendment? Why — why is this particular exception okay, but the other ones that I just suggested are not okay? (p. 15-16)
Indeed, that’s what is at stake in this case: The beginning of a new class of exceptions to the First Amendment based upon concerns about children’s exposure to depictions of “excessive” or “deviant” violence.” Once you open up this can of worms, the sky is likely the limit in terms of how far governments might go to regulate speech in the name of “protecting children.” Continue reading →
Today, the U.S. Supreme Court will hear arguments in Schwarzenegger v. EMA, a case that challenges California’s 2005 law banning the sale of “violent” video games to minors. The law has yet to take effect, as rulings by lower federal courts have found the law to be an unconstitutional violation of the First Amendment.
There’s little doubt that banning the sale of nearly any content to adults violates the protections of Free Speech, including, as decided last year, video depictions of cruelty to animals.
But over the years the Court has ruled that minors do not stand equal to adults when it comes to the First Amendment. The Court has upheld restrictions on the speech of students in and out of the classroom, for example, in the interest of preserving order in public schools.
An important anniversary just passed with little more notice than an email newsletter about the report that played a pivotal role in causing the courts to strike down the 1998 Child Online Protection Act (COPA) as an unconstitutional restriction on the speech of adults and website operators. (COPA required all commercial distributors of “material harmful to minors” to restrict their sites from access by minors, such as by requiring a credit card for age verification.)
The Congressional Internet Caucus Advisory Committee is pleased to report that even after 10 years of its release the COPA Commission’s final report to Congress is still being downloaded at an astounding rate – between 700 and 1,000 copies a month. Users from all over the world are downloading the report from the COPA Commission, a congressionally appointed panel mandated by the Child Online Protection Act. The primary purpose of the Commission was to “identify technological or other methods that will help reduce access by minors to material that is harmful to minors on the Internet.” The Commission released its final report to Congress on Friday, October 20, 2000.
As a public service the Congressional Internet Caucus Advisory Committee agreed to virtually host the deliberations of the COPA Commission on the Web site COPACommission.org. The final posting to the site was the actual COPA Commission final report making it available for download. In the subsequent 10 years it is estimated that close to 150,000 copies of the report have been downloaded.
The COPA Report played a critical role in fending off efforts to regulate the Internet in the name of “protecting our children,” and marked a shift towards focusing on what, in First Amendment caselaw is called “less restrictive” alternatives to regulation. This summary of the report’s recommendations bears repeating:
After consideration of the record, the Commission concludes that the most effective current means of protecting children from content on the Internet harmful to minors include: aggressive efforts toward public education, consumer empowerment, increased resources for enforcement of existing laws, and greater use of existing technologies. Witness after witness testified that protection of children online requires more education, more technologies, heightened public awareness of existing technologies and better enforcement of existing laws. Continue reading →
Today I testified at a hearing by Massachusetts Attorney General Martha Coakley on commercial sexual exploitation and the Internet. When I first learned about it, I feared the worst: time to demonize the Internet. After all, the hearing announcement openly targeted Craigslist and websites generally. But this was not the case at all—as we heard, NGOs, law enforcement, and industry all have roles to play.
Instead of Internet-bashing, the hearing was a constructive dialogue. We learned why children are forced into prostitution and how classified ads on the Internet can promote this illegal activity. I was there to learn how we can help.
Commercial sexual exploitation is big business. Over 100,000 women are in the illegal sex trade. Often these women are actually teenage girls, vulnerable and with no place to go. Their lives are run by pimps, they cater to “johns,” and their lives are a living hell – except that these women become so desensitized that they eventually have no life at all.
These child prostitutes show up in advertisements for “escort services” or “adult services.” Traditionally, these ads were in the yellow pages. Now they exist on the Internet, and these listings can often be graphic. But it’s hard to tell whether these ads involve women against their will or underage girls. That’s why there are folks who would like to see all these ads disappear. And they’ll blame Internet classifieds—indeed, one witness called sites like Craigslist and Backpage “electronic pimps.”
Unfortunately, there are those that think it is better to force the shut down of the adult services section of these sites. But as we heard from danah boyd of Microsoft and a fellow at the Harvard Berkman Center, merely shutting down the listed supply of adult services is superficial. Continue reading →
Next week marks another “National Freedom of Speech Week” and each year I use this occasion as an opportunity to recall how lucky we are to live in a country that respects freedom of speech and freedom of the press. I wrote up a longer essay on this back in 2006 explaining why I am so passionate about freedom of speech and why I am so thankful to live in this country. For me, it comes down to is this: In a free society different people will always have different values and tolerance levels when it comes to speech and media content. It would be a grave mistake, therefore, for government to impose the will of some on all. To protect the First Amendment and our heritage of freedom of speech and expression from government encroachment, editorial discretion over content should always remain housed in private, not public, hands.
However, there will always be those who respond by arguing that speech regulation is important because “it’s for the children.” But raising children, and determining what they watch or listen to, is a quintessential parental responsibility. Personally, I think the most important thing I can do for my children is to preserve our nation’s free speech heritage and fight for their rights to enjoy the full benefits of the First Amendment when they become adults. Until then, I will focus on raising my children as best I can. And if because of the existence of the First Amendment they see or hear things I find troubling, offensive or rude, then I will sit down with them and talk to them in the most open, understanding and loving fashion I can about the realities of the world around them. But I don’t want anyone else doing that job for me. And in America, generally speaking, they can’t. That’s worth celebrating.
And then there’s George. He alone makes freedom of speech worth celebrating:
The Technology Liberation Front is the tech policy blog dedicated to keeping politicians' hands off the 'net and everything else related to technology. Learn more about TLF →
The Technology Liberation Front is the tech policy blog dedicated to keeping politicians' hands off the 'net and everything else related to technology.