Concurring Opinions » Cyber Civil Rights

Tempest in Tempe: First Amendment in the Desert

Derek Bambauer — Fri, 10 Feb 2012 22:10:48 +0000

In the spirit of the excellent colloquy here about Marvin’s thinking on First Amendment architectures, I bring up this news item: Arizona State University blocked both Web access to, and e-mail from, the change.org Web site. ASU students had begun a petition demanding that the university reduce tuition. The university essentially made three claims as to why it did so (below, in order of increasing stupidity):

It was a technical mistake;
Change.org was spamming ASU; and
ASU needs to “protect the use of our limited and valuable network resources for legitimate academic, research and administrative uses.”

#1 and #2 run together. If spam is the problem, you don’t need to block access to the Web site. However, if you are concerned that students are going to read the petition, and sign it, you do need to block access to the Web site.

For #2, sorry, ASU, this isn’t spam. Spam is unsolicited bulk commercial e-mail. Change.org is, allegedly, sending unsolicited political e-mail. And that’s protected by the First Amendment – see, for example, the Virginia Supreme Court’s analysis of that state’s anti-spam law that covered political messages. Potential political spammers have a sharp disincentive to fill recipient’s inboxes – it’s a sure-fire way to annoy them into opposing your position.

For #3, ASU doesn’t get to determine what academic and research uses are “legitimate.” If they throttle P2P apps, that’s fine. If they limit file sizes for attachments, no problem. But deciding that the message from Change.org is not “legitimate” is classic, and unconstitutional, viewpoint discrimination.

This looks like censorship. I think it’s more likely to be stupidity: someone in ASU’s IT department decided to block these messages as spam, and to filter outbound Web requests to the site contained within those messages. But: with great power over the network comes great responsibility. Well-intentioned constitutional violations are still unlawful. It would also help if ASU’s spokesperson simply admitted the mistake rather than engaging in idiotic justification.

As I mention in Orwell’s Armchair, public actors are increasingly important sources of Internet access. But when ASU and other public universities take on the role of ISP, they need to remember that they are not AOL: their technical decisions are constrained not merely by tech resources, but by our commitment to free speech. Let’s hope the Sun Devils cool off on the filtering…

Cross-posted at Info/Law.

The E.U. Data Protection Directive and Robot Chicken

Derek Bambauer — Wed, 25 Jan 2012 21:32:04 +0000

The European Commission released a draft of its revised Data Protection Directive this morning, and Jane Yakowitz has a trenchant critique up at Forbes.com. In addition to the sharp legal analysis, her article has both a Star Wars and Robot Chicken reference, which makes it basically the perfect information law piece…

Supporting the Stop Online Piracy Act Protest Day

Danielle Citron — Wed, 18 Jan 2012 15:11:15 +0000

As my co-blogger Gerard notes, today is SOPA protest day. Sites like Google or WordPress have censored their logo or offered up a away to contact your congressperson, though remain live. Other sites like Wikipedia, Reddit, and Craigslist have shutdown, and more are set to shut down at some point today. There’s lots of terrific commentary on SOPA, which is designed to tackle the problem of foreign-based websites that sell pirated movies, music, and other products–but with a heavy hand that threatens free expression and due process. The Wall Street Journal’s Amy Schatz has this story and Politico has another helpful piece; The Hill’s Brendan Sasso’s Twitter feed has lots of terrific updates. Mark Lemley, David Levine, and David Post carefully explain why we ought to reject SOPA and the PROTECT IP Act in “Don’t Break the Internet” published by Stanford Law Review Online. In the face of the protest, House Judiciary Committee Chairman Lamar Smith (R-TX) vowed to bring SOPA to a vote in his committee next month. “I am committed to continuing to work with my colleagues in the House and Senate to send a bipartisan bill to the White House that saves American jobs and protects intellectual property,” he said. So, too, Senator Patrick Leahy (D-VT) pushed back against websites planning to shut down today in protest of his bill. “Much of what has been claimed about the Senate’s PROTECT IP Act is flatly wrong and seems intended more to stoke fear and concern than to shed light or foster workable solutions. The PROTECT IP Act will not affect Wikipedia, will not affect reddit, and will not affect any website that has any legitimate use,” Chairman Leahy said. Everyone’s abuzz on the issue, and rightly so. I spoke at a panel on intermediary liability at the Congressional Internet Caucus’ State of the Net conference and everyone wanted to talk about SOPA. I’m hoping that the black out and other shows of disapproval will convince our representatives in the House and Senate to back off the most troubling parts of the bill. As fabulous guest blogger Derek Bambauer argues, we need to bring greater care and thought to the issue of Internet censorship. Cybersecurity is at issue too, and we need to pay attention. Derek may be right that both bills may go nowhere, especially given Silicon Valley’s concerted lobbying efforts against the bills. But we will have to watch to see if Representative Smith lives up to his promise to bring SOPA back to committee and if Senator Leahy remains as committed to PROTECT IP Act in a few weeks as he is today.

The Fight For Internet Censorship

Derek Bambauer — Tue, 17 Jan 2012 00:28:44 +0000

Thanks to Danielle and the CoOp crew for having me! I’m excited.

Speaking of exciting developments, it appears that the Stop Online Piracy Act (SOPA) is dead, at least for now. House Majority Leader Eric Cantor has said that the bill will not move forward until there is a consensus position on it, which is to say, never. Media sources credit the Obama administration’s opposition to some of the more noxious parts of SOPA, such as its DNSSEC-killing filtering provisions, and also the tech community’s efforts to raise awareness. (Techdirt’s Mike Masnick has been working overtime in reporting on SOPA; Wikipedia and Reddit are adopting a blackout to draw attention; even the New York City techies are holding a demonstration in front of the offices of Senators Kirstin Gillibrand and Charles Schumer. Schumer has been bailing water on the SOPA front after one of his staffers told a local entrepreneur that the senator supports Internet censorship. Props for candor.) I think the Obama administration’s lack of enthusiasm for the bill is important, but I suspect that a crowded legislative calendar is also playing a significant role.

Of course, the PROTECT IP Act is still floating around the Senate. It’s less worse than SOPA, in the same way that Transformers 2 is less worse than Transformers 3. (You still might want to see what else Netflix has available.) And sponsor Senator Patrick Leahy has suggested that the DNS filtering provisions of the bill be studied – after the legislation is passed. It’s much more efficient, legislatively, to regulate first and then see if it will be effective. A more cynical view is that Senator Leahy’s move is a public relations tactic designed to undercut the opposition, but no one wants to say so to his face.

I am not opposed to Internet censorship in all situations, which means I am often lonely at tech-related events. But these bills have significant flaws. They threaten to badly weaken cybersecurity, an area that is purportedly a national priority (and has been for 15 years). They claim to address a major threat to IP rightsholders despite the complete lack of data that the threat is anything other than chimerical. They provide scant procedural protections for accused infringers, and confer extraordinary power on private rightsholders – power that will, inevitably, be abused. And they reflect a significant public choice imbalance in how IP and Internet policy is made in the United States.

Surprisingly, the Obama administration has it about right: we shouldn’t reject Internet censorship as a regulatory mechanism out of hand, but we should be wary of it. This isn’t the last stage of this debate – like Wesley in The Princess Bride, SOPA-like legislation is only mostly dead. (And, if you don’t like the Obama administration’s position today, just wait a day or two.)

Cross-posted at Info/Law.

Bigoted Harassment, Alive and Well Online

Danielle Citron — Mon, 07 Nov 2011 15:56:09 +0000

With the help of law and changing norms, invidious discrimination has become less prevalent in arenas like schools, workplaces, hotels, and public transportation. Due to our social environments, anti-discrimination law is fairly easy to enforce. Because leaders usually can figure out those responsible for discriminatory conduct and ignore such behavior at their peril, bigotry raises a real risk of social sanction. So too hate discourse in the public sphere is more muted. A hundred years ago, Southern newspapers and leaders explicitly endorsed mob violence against blacks. As late as 1940, a newspaper editor in Durham, North Carolina could state that: “A Negro is different from other people in that he’s an unfortunate branch of the human family who hasn’t been able to make out of himself all he is capable of” due to his “background of the jungle.” In the post-Civil Rights era, the public expression of bigoted epithets and slurs occurs infrequently. One rarely hears racist, sexist, or homophobic speech in mainstream media outlets. Some interpret this state of affairs optimistically, as a sign that we are moving beyond race, gender, and arguably even sexual orientation. The election of the first black President provoked proclamations of our entry into a “post-racial” era. Many contend that we no longer need feminism anymore. Prime time television is filled with images of female power, from Brenda Leigh Johnson’s chief on The Closer to Dr. Miranda Bailey’s “take no prisoners” surgeon on Grey’s Anatomy. Who needs feminism anymore as its goals have been achieved?

But a new era is not upon us. In some arenas, hate’s explicit form has repackaged itself in subtlety. In public discourse, crude biological views of group inferiority are often replaced with a kinder, gentler “color-blind racism,” as sociologist Eduardo Bonilla-Silva calls it. The face of modern racism is, in journalist Touré’s estimation, “invisible or hard to discern, lurking in the shadows or hidden.” The media has also better disguised sexism with its anxiety about female achievement, renewed and amplified objectification of young women’s bodies and faces, and the dual exploitation and punishment of female sexuality, as media scholar Susan Douglas explains.

Offline public discourse may now be on more neutral ground but its online counterpart is not. While virulent bigotry continues behind closed doors, it increasingly appears in online spaces that blend public and private discourse. Although televised sports commentary rarely features anti-gay rhetoric, online sports message boards are awash in in-your-face homophobic speech. Racial epithets and slurs are common online, whether in Facebook profiles, Twitter posts, blog comments, or YouTube videos. College students encounter more sexually inappropriate speech in online interactions than in face-to-face ones.

Matters have not improved since I started talking and writing about it since 2007, when we woke up, for a brief second, and paid attention to sexualized, misogynistic attacks on Kathy Sierra on her blog and two others and the targeting of female law students on AutoAdmit. Then, technologist Tim O’Reilly and Wikipedia co-founder Jimmy Wales called for a Blogger’s Code of Conduct. That effort failed to gain traction, and ever since the bigoted online abuse continues, silencing victims, ruining their online reputations, costing them jobs, and interfering with their ability to engage with others online and offline. Newsweek’s always insightful Jessica Bennett has published important new piece on online misogyny and the Guardian’s Vanessa Thorpe and Richard Rogers similarly explore the rape threats and abuse of female bloggers. I will be blogging about bigoted online harassment, as I am amidst writing a book about it and serving on the Inter-Parliamentary Task Force on Online Hate, which recently held a hearing at the House of Commons. This all has to stop, and now.

On the Persistent Pertinence of Race (The Mobile Phone Use Edition)

Olivier Sylvain — Fri, 23 Sep 2011 15:29:14 +0000

This has been a notable month for those of us who casually or professionally monitor racism and racialism in our putatively post-racial era. Recent studies and news reports confirm that race apparently continues to matter to population distribution, poverty rates, and perceptions about the fairness of criminal justice in the U.S. None of these recent reports and findings reveal anything particularly new about how this world actually looks and operates, notwithstanding the talk about postracialism in America today.

One piece of data, however, continues to intrigue me. According to a report from the Pew Internet and American Life Project published earlier this week, racial minorities rely on their mobile phones for Internet access and text messaging on a daily basis much more than whites. There is nothing particularly new in this information. Researchers have been reporting on the pertinence of age, race, gender, and geography on mobile phone use for some time now. And, for what it’s worth, media use generally has also long been shown to be determined in part by race.

It’s the sheer magnitude of this text messaging datum, however, that continues to strike me. Blacks evidently use their mobile handheld devices to communicate more than people who self-identify as something other than black, doing so at two times the rate of whites. (They are apparently well overrepresented among Twitter users, too.) Certainly, other variables that are meaningfully correlated with race in the U.S. (i.e., wealth, educational opportunity, employment, and income) complicate the story. But even those factors can’t explain the entire difference, as big as it is.

So why the difference? Do these use rates hold true for wealthier, more educated, and employed racial minorities? Does culture explain some of the difference? I don’t know, and I’m not sure any published research provides an explanation. Until recently, my own speculation had been that a large chunk of the difference might be related to an uneven distribution of ownership of laptops and PCs. But, at least according to one source, that divide has narrowed recently.

Todd Wolfson, a professor at Rutgers’ School of Communications and Information, is currently working on a related but different project that will answer at least some of these questions. As he tells it, his aim is to measure the costs and benefits of broadband adoption in largely black low-income communities in Philadelphia, as well as the ability of those communities to use the Internet (presumably by mobile phone) for economic development and community organizing. We can presume that Professor Wolfson’s research will reveal something useful about the distributional fairness or unfairness of having black low-income communities rely so much on mobile phones for IP-based communications. (My sense is that it’s hard to apply for a job or keep up with community related affairs through the phone.) I’m curious about any other research in which others are engaged.

In any event, the implications for policy and law are self-evident. At a minimum, it suggests that regulatory interventions meant to bridge the persistent disparity in access to IP-based communications platforms ought to attend to wireless mobile availability as much as wireline broadband service. Of course, we should probably also work on the complex of underlying disparities in wealth, educational opportunity, and employment. But, in the interest of addressing this racial divide directly, we probably need a comprehensive policy approach that is untethered to the prevailing one-size-fits-all strategy.

This uneven distribution of mobile phone use also has implications for privacy and competition policy. No matter your feelings about the role of government in public life, we can all appreciate that the lack of clearly articulated and enforceable privacy protections for IP-based communications or uniformly applicable rules on whether mobile network operators can discriminate against content and application providers probably impacts racial minorities differently (i.e., harder and for the worse) than others.

As with much of things racial these days, however, it’s unclear there is much political or regulatory will to address such a touchy non-topic on its own terms.

Exporting the First Amendment

Timothy Zick — Thu, 15 Sep 2011 19:05:31 +0000

One of the trans-border concerns I’ll address in my book, The Cosmopolitan First Amendment, relates to the exportation of First Amendment norms and standards. Generally speaking, provincialism and cosmopolitanism both aspire to facilitate the spread of First Amendment norms and standards — although, as I will explain in the book, they differ in important respects with regard to the preferred means of exportation.

In a broad sense, exportation can take many forms. For example, refusal to recognize foreign libel judgments may indirectly result in the exportation of American libel standards. Extraterritorial application of some U.S. laws may effectively export U.S. free speech principles to foreign countries. Voluntary, or court-ordered, compliance with First Amendment standards in cases where aliens’ expressive or religious liberties are affected abroad would also constitute a form of exportation. Conditional spending measures could prohibit American companies working abroad from assisting repressive foreign regimes. Federal legislation might commit the U.S., at least in principle, to facilitating and protecting religious and expressive liberties throughout the world. Exportation through legislation may be somewhat effective in terms of expanding the domain of First Amendment norms. These and other measures may result in expansion of the First Amendment’s actual domain, or at least signal an intent to facilitate expressive and religious liberties regardless of location. In truth, however, these measures are not likely to produce substantial exportation of First Amendment norms and standards.

Exportation is far more likely to occur through diplomatic and foreign affairs policies designed to facilitate expressive and religious liberties around the world. (I consider this exportation of ”First Amendment” norms, broadly speaking, in part because this is one of the primary goals of such policies. Of course, other nations are committed to similar norms and values.) These efforts include U.S.A.I.D. programs, participation in various trans-national processes, and foreign affairs initiatives. Of course, there is no guarantee that these or any similar efforts to export First Amendment norms will be successful. (In this regard, one might read Margaret Blanchard’s book, Exporting the First Amendment: The Press-Government Crusade of 1945-1952 (1986)). However, in the long run, they are likely to bear far more fruit than the legal means of exportation discussed above.

The book will discuss several forms of exportation-by-diplomacy. The State Department’s “21st Century Statecraft” initiative demonstrates some of the complexties and challenges associated with this means of exporting First Amendment norms. One aspect of this program entails facilitating access to counter-surveillance and other technologies that will make it more difficult for repressive foreign regimes to stifle public protest and social movements. Although this Internet freedom initiative has been frequently touted by Secretary of State Clinton, its particulars have not yet been fully specified. As the WikiLeaks episode suggests, the U.S. has not yet determined the extent to which its commitment to Internet freedom will be tempered or affected by national security concerns. Finally, as this recent op-ed observes, American and other technology companies have been involved in counter-productive endeavors such as providing software and other resources to repressive regimes — including Qaddafi’s government.

If this sort of statecraft is going to be part of American foreign policy, it will probably have to involve some collaboration and coordination between government and private industry. Google’s recent resistance of Chinese Internet repression shows that multinational corporations are likely to be important players in the realm of “21st Century Statecraft.” Ultimately, the extent to which the U.S. is able to export First Amendment norms will depend in part on its actual and perceived power and influence across the globe — a subject of intense interest and debate in the twenty-first century.

Identifying Those Responsible for a “Living Horror” and Its Signficance for Proposed Federal Law

Danielle Citron — Thu, 18 Aug 2011 15:48:25 +0000

In what can only be described as the worst side of humanity, the bulletin board Dreamboard hosted a members-only sharing of child pornography, particularly of children under 12. New members could join the board only if they posted child pornography. Members had to continue to post images of child porn every 50 days or face removal. The rules of the board, printed in English, Russian, Japanese, and Spanish, included: (1) “Keep the girls under 13, in fact, I really need to see 12 or younger to know your[sic] a brother,” (2) “don’t avoid nudity in previews. I will NOT accept you if there’s no nudity. And my definition of nudity is pussy or anal in the shot. You just waste your own time if you don’t do this. Because you will not get in, if you don’t follow the rules.” One section of Dreamboard was titled “Super Hardcore,” and the rules required images and videos of “very young kids, getting fucked, and preteens in distress, and or crying. . . . If a girl looks totally comfortable, she’s not in distress, and it does NOT belong in this section.” This part of the site featured images of adults having violent sexual intercourse with very young children, including infants. One file was entitled “2yo assfuck she cries for mommy nasty pthc pedo 1 yo 3 yo 4 yo.” The board amassed over 120 terabytes of violent sexual rape and abuse of children.

According to the rules of the site, members were to use encryption technologies to prevent detection. The rules specified precisely which encryption technologies and proxy servers should be used and which should be avoided. Members did not use their real names, but instead screen names to conceal their identities. All of this suggests that the board went to great lengths to secure their anonymity.

Early this month, Attorney General Eric Holder, Jr. announced that federal investigators has charged 72 people for violating child pornography laws and more than 50 people have been arrested in the United States. The defendants included doctors, lawyers, police officers, and a Navy commander, according to the Ellis County Observer. Thirteen of those charged have pled guilty, and four members have been sentenced between 20 and 30 years. Around 600 people from around the world were members of the bulletin board, which has been shut down. The bulletin board used a server in Atlanta. As Assistant Attorney General Lanny Breuer explained, the site “was a living horror.” John Morton, director of Immigration and Customs Enforcement, declined to say how investigators overcame the technological precautions used by some of the members. He did tell the New York Times: “To those inclined to abuse small children, know this: this isn’t a place on the Internet or the planet in which you are truly safe. It may take us some time, it may take us some effort, but we will find you regardless of a screen name, a proxy server or an encryption effort, period.”

The Dreamboard bulletin board hosted a pernicious cyber mob, whose members egged each other on to commit more and more depraved acts. They provided tips on the steps involved in grooming a child, and lauded members who hosted particularly violent sexual abuse on very young children. The younger, and more distressed the child, the greater applause and access to the site. Some of the worst of the worst of humanity, making it difficult to even describe.

The DOJ executed the recent arrests just days after the House Judiciary Committee approved the Protecting Children from Internet Pornographers Act of 2011 (“the Act”), which would require ISPs to implement certain data retention requirements. Under the bill, ISPs would be required to keep the IP addresses assigned to their subscribers for at least a year to help authorities track down individuals who were violating child pornography laws. As the Atlantic’s Conor Friedersdorf explains, police can access an individual’s Internet history if the person is suspected of a crime, no probable cause is needed.

The Dreamboard indictments, arriving on the heels of the Act’s house committee approval, raise a number of questions, ones that implicate my advocacy of traceable anonymity (which took cues from Dan Solove’s Future of Reputation) and Paul Ohm‘s important criticism that trading traceability anonymity for section 230 immunity would be like throwing Napalm when a surgical strike would do, or something creative like that. A key question is whether the arrests show that the Act’s data retention requirements may be unnecessary. Does the Act buy us too little and cost us too much? As the arrests show, law enforcement can find child pornographers, even those who engage in the most sophisticated practices to remain hidden. Conor Friedersdorf argues that the Act may lead us down a slippery slope to J. Edgar Hoover and the potential for government abuse of the massive ISP databases. He also wisely worries that massive mandated databases are rife for the picking by the group Anonymous, which by my lights isn’t more than a group of bigoted thugs who have fooled the media into believing they are “hacktivists.” (More on Anonymous on the blog and my future book Cyber Civil Rights: Combating Hate in the Information Age). Does this discussion cast doubt on the notion that Internet intermediaries should retain IP addresses in order to enjoy Section 230′s immunity from liability for the postings of others? Should we instead think about a notice and track regime, with a proviso to punish those who seek to abuse the privilege?

Scoring Ourselves to Economic Death

Danielle Citron — Tue, 28 Jun 2011 22:24:43 +0000

In The New York Times, Stephanie Rosenbloom asks readers to “imagine a world in which we are assigned a number that indicates how influential we are.” That number would help determine our success at getting a job, hotel-room upgrade, break on a service, or free samples at the store. As Rosenbloom tells us, imagine no more, companies, such as Klout, PeerIndex, and Twitter Grader, are mining our social media activities and assigning us influence scores. Social scoring is based on our online social network activity, including the number of followers, friends, and the extent to which our online activity gets people moving. If if you recommend a salon to your social network friends and they follow suit, your good word has two functions. You’re doing a good thing for your friends and the salon (let’s hope), and now you’re doing good for you. Because you have inspired people to take action, your influence score may rise. In the present, people with high scores get preferential treatment by retailers. More than 2,500 marketers are now using Klout’s data. Audi will begin offering Facebook users promotions based on their Klout score. The Las Vegas Palms Hotel and Casino is using Klout data to give highly rated guests an upgrade or tickets to a show. In the future, those scores could be used by prospective employers, friends, and dates.

On the one hand, this market trend has something important to commend — its visibility. Consumers can find out their influence scores and work to raise them. By contrast, the impact of behavioral advertising is often hidden. We are tracked and scored in databases and have no idea how it shakes out. Joe Turow’s excellent book Niche Envy explains that consumers know very little about how their data personalizes market transactions. Some individuals may end up as haves and others as have-nots, but neither group knows the extent of it. As Turow explains, “our simple corner store is turning into a Marrakech bazaar–except that the merchant has been analyzing our diaries while we negotiate blindfolded, behind a curtain, through a translator.” On the other hand, the information isn’t perfect and the algorithms secret so people may waste time doing things that they believe will raise their scores but don’t. But that isn’t really troubling, unless every job or blog post had the effect we hoped it might. What’s troubling is the trend’s implications for society and culture. It seems old school to say that people blog, make friends, and engage in online chats to play, experiment, and create culture. Now, they may feel pressured to do all of these things as a matter of economic necessity. We may forgo experimentation for product endorsements, and idle chatter for better job prospects. This makes our children’s choice to engage with social media seem like less of choice than a carefully cultivated necessity. It also spells far more trouble for people who are already victimized, those who cyber mobs target with lies, threats, technical attacks, and privacy invasions. They go offline or write under pseudonyms to protect themselves. We now know that those choices (if we can call it that) cost more economically than they already do aside from the many other costs that my work discusses. I imagine there’s more to this influence score story but I thought I’d share my initial take.

Bullet, So Not Dodged

Danielle Citron — Sat, 04 Jun 2011 15:19:16 +0000

The question that I had been dreading came at last: “Mom, can I have a Facebook page?” My daughter provided a strong defense: she’s 13, so she meets Facebook’s Terms of Service age requirement; she’s nearly an adult in her religion’s eyes (her bat mitzvah is in a week); past practices proves she’s responsible; and well, she feels ready. (And I just discovered, she’s done her homework: see this Yahoo Answers! “My mom won’t let me get a Facebook page, how do I convince her?” thread that I found on my computer).

Next came the conversation. We talked about how increasingly social media activity is part of one’s life’s biography. Anything said and done in social network spaces becomes part of who you are in our Information Age. Colleges may ask for your Facebook password. Over 70% of employers look at social media data for interviewing and hiring (and sad to say, the outcomes are grim for applicants who over 60% of the time don’t get the interview or job due to social network profiles). It’s not just what you post that speaks volumes — your social network (friends and their friends) tells some of your story for you. There goes any control that you thought you had. FB users often wrestle with whether they should de-friend those whose online personas don’t match their sensibilities (or the way in which they want others to perceive them). This means that users need to keep a careful eye on their friends’ profiles (as well as ever-changing privacy settings).

That’s a lot of responsibility. Or, as Bill Keller of the New York Times put it when he allowed his 13-year old daughter to join Facebook, he felt “a little as if I had passed my child a pipe of crystal meth.“ Beyond the potential privacy and reputational concerns that accompany social media use, an online life has other potential perils, like overuse (and thus inattention to studies, face-to-face family time, etc.) that cyber-pessimists underscore (see Nicholas Carr’s The Shallows). And bullying, serious harassment, bigotry increasingly appear in mainstream social media in ways that kids can’t necessarily avoid (my work explores those problems, see here, here, and here, as well as terrific work by guest bloggers Ari Waldman and Mary Anne Franks). Of course, there’s also lots of positive stuff emerging from these networked spaces. Social media outlets like Facebook allow us to enact our personalities. They let us express ourselves in ever-changing and expanding ways. FB and other outlets host civic engagement as Helen Norton and I have emphasized.

I wonder, too, if my kid has a meaningful choice. Can digital natives really stay away from social media if all of their friends socialize there? And will employers and colleges expect that applicants partake in these activities because everyone else does? Someday, will resisting having a Facebook profile express something negative about you? Will it signal that you’re not socially adjusted or successful? As Scott Peppet underscores in his work, we may be forced to give up our privacy to show that we are indeed healthy, social, smart, and the like. That’s a lot to process, right? I’m going to chew on this a while. Your thoughts are most welcome!

Thoughts on Snyder v. Phelps and Future Cases

Danielle Citron — Sun, 06 Mar 2011 19:44:08 +0000

Thanks so much to Professor Neil Richards (who generously serves as our First Amendment guest expert) for his thoughts on Snyder v. Phelps. This post aims to build on his insights and contemplates the opinion’s implications for cases of targeted online hate. In Snyder, Justice Roberts, speaking for the majority, underscored that speech on public affairs “occupies the highest rung of the hierarchy of First Amendment values” and thus deserves “special protection.” The majority contrasted speech on “matters of purely private significance,” explaining that it enjoys less rigorous First Amendment protection because restrictions on such speech fail to threaten “meaningful dialogue of ideas” or to risk “‘self-censorship’ on matters of public import.” Seemingly reflecting its intention to chart a wide territory for matters of public import to provide breathing speech for public discourse, the majority provided select, narrow examples of purely private speech, such as an individual’s credit report and videos of someone engaging in sexually explicit acts. The majority found that the Church engaged in speech on public affairs because it critiqued broad policies such as the government’s stance on gays in the military (even though some of its signs did target Matthew Snyder and his family) and because the protest occurred in a “public place adjacent to a public street,” the archetype of a traditional public forum that enjoys special First Amendment protection.

The majority rejected the Snyder family’s argument that the protests constituted personal attack on private individuals because Westboro had long spoken on the subjects addressed in its picketing and because “no pre-existing relationship or conflict” existed between Westboro and the Snyders that might suggest that “Westboro’s speech on public matters was intended to mask an attack on Snyder over a private matter.” In other words, the Court seems to be saying that Westboro’s speech did not concern a “purely private matter” because the group had long held hateful views (such as “God Hates Fags”) and because it had no personal relationship or conflict with the Snyders before the attack. Herein lies a concern with the Court’s division of the speech universe between speech on public matters and those involving “purely“ private ones. Some severely emotionally-damaging harassment of individuals stems from a perpetrator’s general hateful beliefs and involves victims who are strangers to the perpetrator.

Consider a neo-Nazi group’s online harassment of Bonnie Jouhari. Posters on a white supremacist website targeted Ms. Jouhari, a civil rights advocate and mother of a biracial girl. They revealed her home address and her child’s picture. The site showed a picture of Ms. Jouhari’s workplace exploding in flames next to the threat that “race traitors” are “hung from the neck from the nearest tree or lamp post.” Posters included bomb-making instructions and a picture of a hooded Klansman holding a noose. Ms. Jouhari suffered headaches and anxiety, and her daughter was diagnosed as suffering from severe post-traumatic stress disorder. With the majority’s reasoning in hand, perpetrators of similar attacks might insist that intentional infliction of emotional distress claims should fail because they had long held discriminatory views, which can be understood as political objections to anti-discrimination laws, and had no previous contact with the individuals that they targeted. They might contend that such attacks constituted protest on a matter of public concern, not a purely private matter deserving less First Amendment protection. Justice Breyer, in concurrence, alluded to just such a problem. Breyer asked: “suppose that A were physically to assault B, knowing that the assault (being newsworthy) would provide A with an opportunity to transmit to the public his views on a matter of public concern. The constitutionally protected nature of the end would not shield A’s use of unlawful, unprotected means. And in some circumstances the use of certain words as means would be similarly unprotected.”

Justice Breyer takes up dissenting Justice Alito’s concern that the majority’s holding “unreasonably limits liability for intentional infliction of emotional distress to the point where A (in order to draw attention to his views on a public matter) might launch a verbal assault upon B, a private person, publicly revealing the most intimate details of B’s private life, while knowing that the revelation will cause B severe emotional harm. Does our decision leave the State powerless to protect the individual against invasions of, e.g., personal privacy, even in the most horrendous of such circumstances?” Justice Breyer disagrees with that concern. He explains that the majority’s finding “does not hold or imply that the State is always powerless to provide private individuals with necessary protection.” He find the decision quite narrow, explaining that its finding hinged on the fact that the Snyders could not see or hear the picketing from the funeral ceremony. In Breyer’s view, “To uphold the application of state law in these circumstances would punish Westboro for seeking to communicate its views on matters of public concern without proportionately advancing the State’s interest in protecting its citizens against severe emotional harm.” Nonetheless, the Court’s finding leaves significant room for perpetrators of hate-motivated harassment to argue that the First Amendment insulates them from IIED liability.

A Few Preliminary Thoughts on Snyder v. Phelps

Neil Richards — Wed, 02 Mar 2011 23:06:29 +0000

This morning the Supreme Court handed down its decision in Snyder v. Phelps, No. 09-751, holding that a military funeral protest by the Fred Phelps’ Westboro Baptist Church was protected by the First Amendment, and did not give rise to civil liability under the state law torts of intentional infliction of emotional distress (IIED), invasion of privacy, or civil conspiracy. The case has generated a lot of media attention, in part because it offered a chance to see whether the Roberts Court would continue its trend of retaining or expanding strong First Amendment protections. (In United States v. Stevens 130 S.Ct. 1577 (2010), which I blogged about here last year, the Court claimed fidelity to the existing structures of First Amendment law, even though it seems to have expanded corporate speech protections in Citizens United 130 S.Ct. 876 (2010), and cut back on incitement doctrine in Holder v. Humanitarian Law Project, 130 S.Ct. 2705 (2010)). Snyder v. Phelps is also notable because the defendant, Fred Phelps, is possibly the most unappealing First Amendment claimant that has made it to the Supreme Court. In an opinion by Chief Justice Roberts, the Court upheld the funeral protest, essentially holding that speech on matters of public concern made peaceably in a public space receives protection even if it causes significant psychological and emotional harm. As the Chief Justice concluded:

Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and—as it did here—inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker. As a Nation we have chosen a different course—to protect even hurtful speech on public issues to ensure that we do not stifle public debate. That choice requires that we shield Westboro from tort liability for its picketing in this case.

There is a lot to say about this important decision, but a few preliminary observations struck me as especially interesting. First, the holding in the case seems to be correct, at least as a matter of fidelity to existing First Amendment precedent. In Falwell v. Flynt, 485 U.S. 46 (1988), the Court held that IIED suits by public figures had to satisfy the protective actual malice standard of New York Times v. Sullivan, 376 U.S. 254 (1964), continuing the trend of First Amendment cases protecting speech on matters of public concern even if they caused emotional injury. Some observers thought that Snyder was a chance for the Court to halt the trend, since Snyder, the plaintiff in this case, was merely the father of an ordinary soldier killed while serving in Iraq and not a public figure. What’s interesting about today’s opinion is that the Court sidestepped this question entirely, holding that the nature of the speech was a matter of public concern and thus protected. The Court held that the Church’s rather distasteful message – that God hates America and is punishing it for its tolerance of homosexuality, particularly in the armed forces – was principally a commentary on public affairs rather than a private act of harassment against the Snyder family. Again, this is consistent with the broad theme of modern First Amendment law that speech on matters of public concern (especially politics) is entitled to very strong protection, and cannot be regulated or made the subject of civil liability even when (like this speech) it is both offensive to many and causes significant harm.

The second aspect of this case that’s notable is what it says about tort liability and free speech. Dan Solove and I have argued (here) that torts are most threatening to the First Amendment when they allow the state to control the content of public debate. Snyder is certainly consistent with that theory, and it seems to all but rule out liability for IIED when the speech at issue is about a matter of public concern. The Court also ruled that the invasion of privacy (intrusion upon seclusion) claim for funeral disruption violated the First Amendment because the speech was protected, and the captive audience doctrine did not save Snyder’s claim. The invasion of privacy claim is odd, because it seems that the district court in this case mis-applied Maryland law. Although the intrusion upon seclusion tort would be violated (and probably could to impose liability constitutionally) if a protestor disrupted a funeral by entering a church or menacing a gravesite, those facts weren’t present here. (In fact, the concurrence by Judge Shedd at the Fourth Circuit level made exactly this point, but the point wasn’t preserved on appeal). So in reality, the invasion of privacy claim boils down to something like “you hurt my feelings when you picketed the funeral from a public place”; in other words, a classic IIED claim.

There are thus lots of questions about the relationship between tort liability and free speech that the Court refused to decide and remain open. For instance, the Court tells us that speech on “matters of public concern” is protected, which it defines as “a subject of general interest and of value and concern to the public.” But it doesn’t define private speech, so we don’t really know how broad the “public speech” category is. Presumably, because the Court uses a kind of “enquiring minds want to know” standard, it’s a rather broad category, but it’s hard to be sure from this opinion. The Court does hint in a couple of places that personally directed harassment, speech to a small number of people, and the publication of someone else’s sex tape would be “private speech” and more readily amenable to regulation based on their content. In addition, the Court refused to rule on a second IIED claim, one arising from a post on the Church’s website that described the funeral protest in detail. The court noted only that “an Internet posting may raise distinct issues in this context,” and declined to rule on the question. This allows the possibility that the Court could create a separate category of cyber-harassment, though given the overall tenor of the opinion, I think this possibility is unlikely to occur in practice. It is interesting to see the Court treading warily in the Internet speech context, however.

The third notable aspect of this case is Justice Alito’s dissent. Last year in Stevens, he dissented from the Court’s protection of animal cruelty videos, apparently on the ground that certain images are so horrible that society can regulate them. Today, he also seemed outraged by the emotionally harmful nature of the Church’s protest, and would have allowed the state to regulate the protest by holding that the tort actions weren’t protected by the First Amendment. Alito seems willing to approve a per se rule that funerals call for special sensitivity and special protection against “emotional assaults.” But reading this opinion together with his Stevens dissent, it appears that Justice Alito is the most willing member of the current Court to allow regulation of speech based upon its morally objectionable nature or its emotionally harmful content. It will be interesting to see how he rules the next time the Court hears a hate speech case, if only to test his fidelity to this principle. If his vote in that future case is consistent with his vote today, Justice Alito may be the best friend of anyone who seeks a broader protection against hate speech and other words that wound.

Finally, although the case is something of a victory for orthodox free speech theory, there is one note of concern for free speech advocates, which is the opinion’s toleration of “free speech zone” theory. The opinion notes with approval that the funeral protest took place from a free speech zone from behind a protective fence, and notes at the end that even though Phelps’ speech was protected, it would certainly be amenable to possibly aggressive time, place, and manner restriction. If, as Tim Zick suggests in his excellent recent book Speech Out of Doors, spatial tactics have become the new frontier of free speech protection, Snyder v. Phelps possibly moves us even further in that direction, for all of its protection of the funeral protest at issue. So the real message to states from Snyder v. Phelps might be not that lots of speech is protected, but as a blueprint for ways to regulate lots of speech in the future.

Super on Egypt and the Trajectory of Civil Rights Movements

Danielle Citron — Mon, 14 Feb 2011 17:55:22 +0000

My colleague David Super has an insightful op-ed in today’s Baltimore Sun entitled “In Egypt, Treading the Path of Civil Rights.” Many of you know David’s important scholarship, which reconstructs an intellectual framework for anti-poverty law (see here, here, here, here, here, here, and here). Here is his superb op-ed:

These opportunities come once in a generation, social movements whose cause is so manifestly just, and whose potential is so transformative, that they rise above the clutter of ordinary politics. The civil rights movement led by Martin Luther King, Cesar Chavez and others inspired a generation as it overcame Klansmen, brutal sheriffs and growers’ thugs. Two decades later, we watched in awe as the brave people of Eastern Europe brought down one repressive communist dictatorship after another. Over the past three weeks, millions of Egyptians matched the bravery of these visionaries.

These movements have a palpable continuity. The civil rights movement refuted Soviet propaganda that free societies are incapable of social justice. Likewise, the people of Tunisia, Egypt and other Middle Eastern countries find inspiration in the popular revolutions that brought down communism. But they are also heirs of King and Chavez: As ubiquitous as the slogans against the regime have been calls of “Peaceful!” and calls for giving voice to the poor and unemployed.

The contrast between Egyptians’ jubilation over President Hosni Mubarak‘s departure and the trepidations expressed in the U.S. and elsewhere is disappointing. Some seem eager to see the military preserve the oppressive regime that former generals Mubarak and Vice President Omar Suleiman led. This would be tragic. Parallels from the civil rights movement and Eastern Europe’s liberation suggest these fears are unfounded.

Opponents of each movement similarly dismissed them with prejudice posing as sophistication. Supposed sober heads painted African-Americans and farmworkers as cheerful simpletons content in their exploitation, rising up only because of nefarious “outside agitators.” These same kinds of assumptions led some to see farmworkers as puppets of “activist priests” and others to question whether Eastern Europeans were capable of maintaining stable democracies.

Today, we hear eerily similar warnings about Arabs’ supposed need for an iron fist to stave off chaos. And today’s experts insist that the overwhelmingly secular democracy movement is a mere tool of Egypt’s 20 percent Islamist minority. No one would stand to lose more in an Islamist tyranny than Egypt’s Coptic Christians, yet they have joined in the uprising. Seeing Christians form a protective human chain around Muslims at Friday prayers in Tahrir Square had to inspire anyone who remembers the Freedom Riders and the Protestants and Jews who stood with largely Catholic farmworkers against growers’ thugs.

Just as the Polish resistance sought safety in the shadow of Catholic churches, Egypt’s Muslim Brotherhood has maintained networks through mosques while the regime’s dreaded Mukhabarat arrested, tortured and killed secular activists operating elsewhere. Poland is probably as devoutly Catholic as Egypt is Muslim, yet after the dictatorship fell, the church became influential but by no means dominant in Polish politics. The best way to put Egypt on a course to Islamic domination would be to leave the regime in place long enough to round up and eliminate the secular opposition.

Some crassly opposed the farmworkers because higher wages might increase food prices. So, too, some would sacrifice Egyptians to a brutal dictatorship to protect Israel. This view is as foolish as it is craven. To distract Egyptians from corruption, economic mismanagement and repression, the regime has vilified Jews (and Americans). The Egyptian state sharply restricts freedom of the press but happily publishes “The Protocols of the Elders of Zion,” the notorious fraud that has spawned generations of anti-Jewish violence. We cannot promote Israel’s long-term security by supporting a regime that incites violence against foreign journalists by suggesting they are Jewish spies.

Growers hired thugs to assault peaceful farmworkers and then sought injunctions against picketing to “restore order.” Similarly, the Egyptian regime that claims it is indispensable to maintaining order withdrew the police from neighborhoods and sent them to brutalize peaceful protesters, freed masses of common criminals while arresting journalists, and sponsored mobs throwing firebombs near the Egyptian Museum’s priceless antiquities. It converted that museum into a Mukhabarat torture center.

The Egyptian regime showed itself to be composed of bullies, and bullies do not respond to gentle persuasion, especially when they believe the words mask weakness. Gov. Orval Faubus of Arkansas had more plausible moderate credentials than General Suleiman, but when he blocked integration of Little Rock‘s Central High School, Dwight Eisenhower sent in federal troops. Eastern European demonstrators wisely stayed in the streets until civilian transitional governments with clean hands dismantled the secret police. Asking Egyptian demonstrators to settle for less is to demand that they accept their own annihilation.

President George H.W. Bush urged Iraqi Shiites to rise up for freedom and then stood by as Saddam Hussein slaughtered them. President Bill Clinton ignored pleas from pro-Western Bosnian democrats until massive ethnic cleansing had discredited them. President George W. Bush launched a Middle Eastern “freedom agenda,” then abandoned the activists who came forward in response. President Barack Obama’s bold 2009 address at Cairo University inspired many of Tahrir Square’s demonstrators.

Redeeming that speech’s promise, and restoring our credibility with the most important freedom movement of our time, requires unusually public and direct action. The administration must speak with a new clarity in insisting on a broad-based transitional government and dismantlement of the emergency laws that gave the secret police free reign. Doing any less would squander our moral capital, vindicate our most cynical detractors and discredit our civil rights movement’s worthy successors. It would waste a rare, remarkable opportunity to advance our interests and our values at once.

Salutary Legislative Efforts to Permit Pseudonymous Litigation

Danielle Citron — Fri, 11 Feb 2011 22:17:13 +0000

Cyber harassment often invades victims’ privacy by exposing their sensitive personal information, revealing photographs, and the like. Because search engines reproduce information cached online, time’s passage cannot alleviate their reputational, emotional, and physical damage. Unlike newspapers, which were once only easily accessible in libraries after their publication, search engines now index all content on the web, and can produce it instantaneously. Victims must live with digital privacy invasions that are deeply humiliating, reputation-harming, and potentially dangerous, as well as searchable and accessible from anywhere, and by anyone, in the world. Often, the information is taken out of context, producing a distorted and damaging view of the person.

While lawsuits can serve to redress victims for these harms, they also risk compounding the severity of these privacy problems. Law often permits victims to sue perpetrators for intentional infliction of emotional distress, invasion of privacy, and defamation. But victims typically must bring such civil lawsuits in their own names. As a result, the complaints, which are available to the press and interested individuals, further publicize the cyber harassment, exacerbating the privacy harms suffered by victims. In turn, victims may refrain from pursuing their harassers in court not because they lack legitimate claims but because they fear exposing themselves to further privacy invasions.

Hawaii’s proposed Senate Bill 288, if enacted, could be invoked to combat this problem when the online harassment occurs in domestic abuse cases. The bill would permit pseudonymous papers “in cases of alleged domestic abuse where the alleged victim has already received an order of protection, temporary restraining order, or protective order against the accused party.” The bill covers cases where pseudonymous filing is “reasonably necessary to protect the privacy of the alleged victim and will not unduly prejudice the prosecution of the defense.” The proposed legislation permits victims of domestic abuse, including cases involving online harassment, to bring law’s coercive power to bear against perpetrators. Because the bill allows courts to weigh the victim’s interest in privacy against the public’s interest in disclosure, it aims to protect privacy and transparency. Disappointingly, however, the bill only covers cases involving domestic abuse, thus failing to reach instances of online harassment involving privacy invasions where victims may refuse to sue their attackers for fear of publicity.

Wikipedia’s Efforts to Close its Gender Gap

Danielle Citron — Tue, 01 Feb 2011 16:39:35 +0000

Time magazine recently did a true-to-form story on Wikipedia, where guest editors (and our very own featured author) Jonathan Zittrain (see here too), Robert McHenry, Benjamin Mako Hill, and Mike Schroepfer assisted in writing/editing/re-writing a feature entitled Wikipedia’s “Ten Years of Inaccuracy and Remarkable Detail.” As the piece explained, Wikipedia just celebrated its 10th birthday. The site has 17 million entries in more than 250 languages, quite a feat given that Encyclopedia Brittanica only has 120,000 and only in English. The Time wiki-like piece notes that Wikipedia has a “diverse, international body of contributors.”

According to The New York Times, most contributors are male. More specifically, “less than 15 percent of its hundreds of thousands of contributors are female.” This, in turn, has skewed the gender disparity of topics and emphasis. Wikimedia’s executive director Sue Gardner explains that topics favored by girls such as friendship bracelets can seem short when compared with lengthy articles on something boys typically like such as toy soldiers or baseball cards. The New York Times notes that a category with five Mexican feminist writers might not seem so impressive when compared with 45 articles on characters in “The Simpsons.”

Why is this so? Joseph Reagle, a fellow at the Berkman Center for Internet and Society at Harvard and author of “Good Faith Collaboration: The Culture of Wikipedia,” explains that Wikipedia’s early contributors shared “many characteristics with the hard-driving hacker crowd,” including an ideology that “resists any efforts to impose rules or even goals like diversity, as well as a culture that may discourage women.” He notes that adopting an ideology of openess means being “open to very difficult, high-conflict people, even misogynists.” The demographics of Wikipedia’s editors may also stem, in part, from the tendency of women to be “less willing to assert their opinions in public.”

How Wikipedia is now, and has been, responding is worth noting. Sue Gardner told the Times that she hopes to raise the share of women contributors through subtle persuasion and outreach to welcome newcomers to Wikipedia. Dave Hoffman and Salil Mehra’s terrific piece Wikitruth Through Wikiorder demonstrates that the site has already fostered efforts to create a more inclusive environment. As Hoffman and Mehra explain, Wikipedia has an Arbitration Committee whose volunteer members rule on disputes and set forth concrete rules on how users should behave. The Arbitration Committee has sanctioned users who make homophobic, ethnic, racial or gendered attacks or who stalk and harass others. According to Hoffman and Mehra’s empirical study, in cases when either impersonation or anti-social conduct like hateful attacks occur, the Administrative Committee will ban the user in 21% of cases. Wikipedia’s more than 1,500 administrators, in turn, enforce those rules. Wikipedia also permits users to report impolite, uncivil, or other difficult communications with editors in its Wikiquette alerts notice board.

The Ugly Persistence of Internet Celebrity

Danielle Citron — Sun, 30 Jan 2011 23:16:38 +0000

Many desperately try to garner online celebrity. They host You Tube channels devoted to themselves. They share their thoughts in blog postings and on social network sites. They post revealing pictures of themselves on Flickr. To their dismay though, no one pays much attention. But for others, the Internet spotlight finds them and mercilessly refuses to yield ground. For instance, in 2007, a sports blogger obtained a picture of a high-school pole vaulter, Allison Stokke, at a track meet and posted it online. Within days, her picture spread across the Internet, from message boards and sport sites to porn sites and social network profiles. Impostors created fake profiles of Ms. Stokke on social network sites, and Ms. Stokke was inundated with emails from interested suitors and journalists. At the time, Ms. Stokke told the Washington Post that the attention felt “demeaning” because the pictures dominated how others saw her rather than her pole-vaulting accomplishments.

Time’s passage has not helped Stokke shake her online notoriety. Sites continuously updated their photo galleries with pictures of Stokkes taken at track meets. Blogs boasted of finding pictures of Stokke at college with headings like “Your 2010 Allison Stokke Update,” “Allison Stokke’s Halloween Cowgirl Outfit Accentuates the Total Package,” and “Only Known Allison Stokke Cal Picture Found.” Postings include obscene language. For instance, a Google search of her name on a safety setting yields 129,000 results while one with no safety setting has 220,000 hits. Encyclopedia Dramatica has a wiki devoted to her (though Wikipedia has faithfully taken down entries about Ms. Stokke).

Ms. Stokke’s struggles exemplify the limitations of privacy tort law in the digital age. The public disclosure tort only applies to private matters, not to pictures taken in public at track meets or sorority parties. And it provides no relief on matters deemed newsworthy, which may be applicable given the persistent interest in Ms. Stokke over the past four years. The intrusion on seclusion claim, too, offers no help as it provides relief only when parties invade spaces deemed private. Without law’s help, Ms. Stokke and her family tried to take matters into their own hands but were outmatched by a leering online crowd. As soon as they asked sites to take the pictures down (and many did), others appeared. Perhaps Eric Schmidt had it right when he suggested that young people change their names to move beyond their digital pasts. Ms. Stokke’s persistent and unwanted online celebrity shows the continued importance of Daniel Solove’s book The Future of Reputation: Gossip, Rumor, and Privacy on the Internet.

Outsourcing & Tracking the Service Sector

Frank Pasquale — Tue, 18 Jan 2011 16:00:55 +0000

A recent article on Kinect hackers mentions the ease with which the new Microsoft game platform can drive real world devices:

When Kinect appeared on store shelves, Adafruit Industries, an online seller of DIY electronics kits, offered $1,000, then $3,000, to the first person who could analyze Kinect’s innards and share the information with developers at large. It took all of six days before the Kinect’s secrets were cracked. . . . Geeks around the world set to work. One strapped a Kinect to a Roomba, letting him steer the robot vacuum cleaner by waving his hand. Others used Kinect to control World Of Warcraft characters with their bodies rather than keyboards.

Cool, right? Well, perhaps not so much. A website based on the film “Sleep Dealer” spells out a business model for using technology to further stratify the labor force:

The 20th century generated the tools to globalize and maximize production. Computers simplified tasks, the Internet connected every human being, robots climbed stairs, vacuumed carpets and pumped hearts. There was only one missing piece, a link that could tie them all together, and Cybracero Systems discovered it: We call it THE NODE®. Through basic nodes implanted in the wrists, ankles and eyes of workers, they are able to connect to and control human-like machines in the first world. In this way, any job, even manual labor, can be accomplished.

Some call it “unbelievable”. We call it “Telepresence”. Through Telepresence, a chauffer in Tijuana nodes up and drives a cab through the streets of London. A nanny in Tijuana babysits a toddler in Beverly Hills. A crew from Tijuana raise a skyscraper in Chicago. Soon, Telepresence will be globalized.

For a refreshingly bleak libertarian perspective on pervasively distributed “copies” of human selves, check out Robin Hanson’s discussion with Russ Roberts.

Many will likely bridle at the idea of implanted nodes in workers. But when the “freedom of contract” crowd wraps its minds around this future, I’m sure they can think of it as a worker’s God-given right to a certain form of bodily care. A recent issue of Harper’s also mentioned some changing mores on implants. For example, from cables on Guantanamo detainees:

“I’ve just thought of something,” [a Saudi Arabian] added, and proposed implanting detainees with an electronic chip containing information about them and allowing their movements to be tracked with Bluetooth. This was done with horses and falcons, [he added]. [White House advisor Brennan] replied “Horses don’t have good lawyers.” [Harper's, Feb. 2011, p. 16]

And from “cost-saving ideas submitted” to the “Securing Americans’ Value & Efficiency Program:”

Implant a chip under the skin of our combat troops in order to locate them quickly. It would find our captured troops in order to locate them quickly. It would find our captured troops and save the taxpayers thousands of dollars. [Harper's, Feb. 2011, p. 18]

And someday it might be possible to track “illegals” like FedEx packages.

While it’s all too easy to be overenchanted by futurism, I’m glad to see legal scholars grappling with robotized futures. As Ryan Calo observes, robots create new privacy concerns. Robotizing humans creates even greater ones.

Advancing the Fight Against Cyber Hate with Greater Transparency and Clarity about Hate Speech Policies

Danielle Citron — Fri, 07 Jan 2011 16:36:53 +0000

Today, online intermediaries voluntarily seek to combat digital hatred, often addressing hate speech in their Terms of Service Agreements or Community Guidelines. Those agreements and guidelines tend to include vague prohibitions of hate speech. The terms of service for Yahoo!, for instance, requires users of some services to refrain from generating “hateful or racially, ethnically or otherwise objectionable” content without saying more. Intermediaries can advance the fight against digital hate with more transparency and clarity about the terms of, and harms to be prevented by, their hate speech policies, as well as the consequences of policy violations. With more transparency and clarity, intermediaries can make behavioral expectations more understandable and users can more fully appreciate the significance of digital citizenship, see here, here, here, and here. The more intermediaries and users understand why a particular policy prohibits a certain universe of speech, the more likely they can then put into practice, and adhere to, that policy in a way that achieves those objectives.

Before seeking to provide guidance on how intermediaries might do that, it is important to recognize that efforts to define hate speech raise at least two significant challenges. First, many disagree over which, if any, of the harmful effects potentially generated by such speech are sufficiently serious to warrant action. Second, controversy also remains about the universe of speech that is actually likely to trigger harms deemed important enough to avoid. So, for example, even if an intermediary defines hate speech as that which tends to incite violence against targeted groups, how do we determine which speech has the propensity to do that? Much of this lies in identifying the factors relevant to making such causal predictions. In Intermediaries and Hate Speech: Fostering Digital Citizenship for the Information Age (forthcoming BU Law Review 2011), Helen Norton and I don’t pretend that that we can make hard choices easy and recognize that intermediaries’ choices among various options may turn on a variety of issues: their assessment of the relative costs of hate speech and its constraint; empirical predictions about what sort of speech is indeed likely to lead to what sorts of harms; the breadth of their business interests, available resources, and the like; and their sense of corporate social responsibility to foster digital citizenship. Intermediaries’ choices on how to define hate speech and the harms that they seek to avoid — however difficult — can and should be made in a more principled and transparent way.The Spectrum of Definitions Available to Intermediaries

Narrower Definitions of Hate Speech: More Tangible Harms

1. Speech that threatens and incites violence

Intermediaries may define prohibited hate speech as that which threatens or encourages violence against individuals or groups. Calls for violence effectuate a wholesale denial of digital citizenship. The U.S. Supreme Court has provided guidance for this approach, finding that speech that constitutes a “true threat” or intentional incitement to imminent violence is entirely unprotected by the First Amendment and within the government’s power to regulate. Assessing whether certain speech is likely to incite imminent violence or will lead reasonable people to fear violence will vary with the content and context of the expression. Key factors in making such evaluations include — but may not be limited to — the clarity with which the speech advocates violence and the specificity with which individuals are identified as potential targets. For instance, the inclusion of a target’s personally-identifying information can contribute to the conclusion that a reasonable person would find the expression to communicate a serious expression of intent to inflict bodily harm upon the target.

These sorts of factors can help intermediaries determine whether certain situations should be characterized as threats of, or incitements to, violence. Posters on a Yahoo! bulletin board, for instance, listed names of specific Arab-Americans alongside their home addresses, telephone numbers, and the suggestion that they are “Islamic terrorists.” There, the targeted individuals notified Yahoo!, which immediately took down the postings. Neo-Nazi Hal Turner’s blog postings offer another illustration of speech that threatens or incites violence. A jury convicted Turner in a criminal case based on his postings saying that Judges Frank Easterbrook, Richard Posner, and William Bauer “deserve to be killed,” along with the targets’ photographs, work locations, and a picture of their courthouse modified to show the locations of “anti-truck bomb barriers.”

Sometimes hate speakers urge violence against groups rather than specific individuals. For instance, Turner’s website also urged readers to murder “illegal aliens”: “We’re going to have to start killing these people. I advocate using extreme violence against illegal aliens. Clean your guns. Find out where the largest gathering of illegal aliens will be near you . . . and then do what has to be done.” Along these lines, some intermediaries may define hate speech as threats of violence against groups and individuals. beliefnet, a website devoted to providing information on a wide variety of topics related to faith and spirituality, offers a helpful definition of hate speech in this vein.

To be sure, definitional challenges remain even under a narrowly drafted policy that constrains only hate speech that threatens of incites violence against specific individuals or groups. Under what circumstances would a reasonable person understand certain online speech — such as the use of certain cultural symbols, like nooses and burning crosses — to communicate a true, if implied, threat? With respect to cross burning, the Supreme Court has observed that some symbols in certain contexts — but not in all contexts — effectively express frightening threats. Timothy Zick has thoughtfully explored the use of context and cultural meaning to determine whether cross-burning communicates threats of violence or instead political protest as has Alexander Tsesis. Contextual inquiry is as inevitable as it is difficult under any definition of hate speech. Focusing on the specific harms to be prevented can help us sharpen and justify our inquiry in a principled way.

2. Speech that intentionally inflicts severe emotional distress

Although this inquiry too is inevitably context-specific, a body of tort law illuminates the factors that courts use in determining if speech amounts to intentional infliction of emotional distress. As Benjamin Zipursky explains, “over decades and even centuries, courts recognized clusters of cases” constituting extreme and outrageous behavior outside the norms of decency. These include behavior that is individually targeted, especially threatening or humiliating, repeated, or reliant on especially sensitive or outrageous material. Targeted individuals cannot fulfill their potential as digital citizens if they find cyberspace an unsafe environment to express their views.

Recall Bonnie Jouhari’s experience with digital hate, see here. There, an administrative law judge determined that the website operator intentionally inflicted emotional distress on Jouhari and her daughter through “a relentless campaign of domestic terrorism.” The postings’ harms could have been mitigated had an intermediary—such as the Internet access provider hosting the site—removed it. Unfortunately, the postings remained online long after Ms. Jouhari enlisted the help of the FBI and the state Department of Housing to pursue action against the website operator.

3. Speech that harasses

Intermediaries might choose to define hate speech in terms of longstanding harassment principles, which permit government to regulate harassing speech at work or at school when such harassment is sufficiently severe or pervasive to undermine access to equal employment or educational opportunity. Courts and enforcement agencies have interpreted statutorily prohibited harassment to include oral or written conduct that is sufficiently severe or pervasive to create a discriminatory educational or workplace environment. Factors relevant to assessing whether verbal or written conduct meets this standard include “the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance;” and whether it inflicts psychological harm. In the educational context, for example, verbal or written conduct violates statutory prohibitions on discrimination by federally funded educational activities when the “harassment is so severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to the educational opportunities or benefits provided by the school.”

More specifically, Bryn Mawr defines harassment to include “verbal behavior such as unwanted sexual comments, suggestions, jokes or pressure for sexual favors; nonverbal behavior such as suggestive looks or leering” and offers as examples “continuous and repeated sexual slurs or sexual innuendoes, “offensive and repeated risqué jokes or kidding about sex or gender-specific traits,” and “repeated unsolicited propositions for dates and/or sexual relations.” The College of William and Mary prohibits “[c]onduct that is sufficiently severe, persistent or pervasive enough so as to threaten an individual or limit the ability of an individual to work, study, or participate in the activities of the College” and defines such conduct to include “making unwanted obscene, abusive or repetitive telephone calls, telephone messages, electronic mail, instant messages using electronic mail programs, or similar communications with intent to harass.” Although harassment in the employment and education contexts does not parallel that in cyberspace in a number of respects, Internet intermediaries remain free to consider these efforts when crafting their own policies.

Broader Definitions of Hate Speech: Less Tangible Harms

As private actors, intermediaries remain unconstrained by the Constitution and thus are legally free to respond to a wider universe of hate speech than that held to be unprotected by the First Amendment — such as hate speech that inflicts arguably less tangible, yet still substantial harms to digital citizenship.

1. Speech that silences counter-speech

Intermediaries may define hate speech as including that which silences or devalues its targets’ counter-speech. They might draw from private universities’ extensive experience in regulating speech of this type, since they—like Internet intermediaries—are unconstrained by the First Amendment yet for institutional reasons generally remain deeply attentive to free speech as well as antidiscrimination concerns. Some private universities, for example, go beyond the anti-harassment requirements of Titles VI and IX in identifying a certain set of community norms to be protected from disruptive speech. Such policies often emphasize a spirit of academic freedom that requires not only a commitment to free discourse, but also an understanding that certain expression can actually undermine that discourse.

Colgate University, for example, articulates its commitment to intellectual inquiry and debate by prohibiting “acts of bigotry” because they “are not part of legitimate academic inquiry.” The university emphasizes the contextual nature of this inquiry, noting that “harassment has occurred if a reasonable person would have found the behavior offensive and his or her living, learning, or working environment would be impaired,” while reserving the right to discipline offensive conduct “that is inconsistent with community standards even if it does not rise to the level of harassment as defined by federal or state law.”

Other proposals would similarly permit private universities to punish slurs, insults, and epithets (normally protected by the First Amendment from regulation by public actors), but would otherwise allow speech that invites a response and rational discourse. For example, Peter Byrne argues that access to free speech on campus “should be qualified by the intellectual values of academic discourse,” permitting universities to bar racial insults but not “rational but offensive propositions that can be disputed by argument and evidence.” He argues that “racial insults have no status among discourse committed to truth;” they do not aim to set forth, improve, or critique any proposition. Indeed, racial insults simply communicate irrational hatred designed to make the target feel less worthy. Intermediaries might choose to define prohibited hate speech as that which shuts down, rather than facilitates, reasoned discourse—e.g., slurs, insults, and epithets.

2. Speech that exacerbates hatred or prejudice

An intermediary might choose to focus on speech that more broadly contributes to bigotry and prejudice by denigrating or defaming an entire group. Advocates of such an approach often target inflammatory and virulent rhetoric. Jeremy Waldron, for example, distinguishes between “hateful” and “moderate” forms of a particular message, as well as between “attacks on a person and attacks on a position that they hold.” In so doing, he would prohibit speech that is both hateful and attacks the person (rather than the person’s position). He seeks to return to an understanding of group defamation’s harms as including visible signs that “group members may be subject to abuse, defamation, humiliation, discrimination, and violence.”

Under the title “Don’t be sexist, racist, or a hater,” Digg describes its hate speech policy as: “Would you talk to your mom or neighbor like that? Digg defines hate speech as speech intended to degrade, intimidate, or incite violence or prejudicial action against members of a protected group. For instance, racist or sexist content may be considered hate speech.” YouTube appears to take a similar definitional approach, explaining that it is “generally okay to criticize a nation, but it is not okay to make insulting generalizations about people of a particular nationality.”

The Offensive Internet

Danielle Citron — Tue, 04 Jan 2011 19:18:38 +0000

Harvard University Press recently published The Offensive Internet: Speech, Privacy, and Reputation, a collection of essays edited by Saul Levmore and Martha Nussbaum. Frank Pasquale, Dan Solove, and I have chapters in the book as do Saul Levmore, Martha Nussbaum, Cass Sunstein, Anupam Chander, Karen Bradshaw and Souvik Saha, Brian Leiter, Geoffrey Stone, John Deigh, Lior Strahilevitz, and Ruben Rodrigues. Stanley Fish just reviewed the book at New York Times.com.

19 Points on Wikileaks

Frank Pasquale — Sun, 12 Dec 2010 02:39:59 +0000

Don’t worry, it’s not another prolix post from me, just commentary on Jack Goldsmith’s Seven Thoughts on Wikileaks and Lovink & Riemens’s Twelve theses on WikiLeaks. (And here’s an FAQ for those confused by the whole controversy.)

Goldsmith, who takes cybersecurity very seriously, nevertheless finds himself “agreeing with those who think Assange is being unduly vilified.” He believes that “it is not obvious what law he has violated,” and Geoff Stone today said that many Lieberman-inspired efforts to expand the Espionage Act to include Assange’s conduct would be unconstitutional. Goldsmith asks:

What if there were no wikileaks and Manning had simply given the Lady Gaga CD to the Times? Presumably the Times would eventually have published most of the same information, with a few redactions, for all the world to see. Would our reaction to that have been more subdued than our reaction now to Assange? If so, why?

Lovink & Riemens provide something of an answer:

Traditional investigative journalism used to consist of three phases: unearthing facts, crosschecking these and backgrounding them into an understandable discourse. WikiLeaks does the first, claims to do the second, but omits the third completely. . . . What WikiLeaks anticipates, but so far has been unable to organize, is the “crowd sourcing” of the interpretation of its leaked documents. That work, oddly, is left to the few remaining staff journalists of selected “quality” news media.

Later, academics pick up the scraps and spin the stories behind the closed gates of publishing stables. But where is networked critical commentariat? Certainly, we are all busy with our minor critiques; but it remains the case that WikiLeaks generates its capacity to inspire irritation at the big end of town precisely because of the transversal and symbiotic relation it holds with establishment media institutions. . . .Therein lies the conflictual terrain of the political.

Perhaps the difference between the treatment of Assange and the NYT is a widespread sense that the “paper of record” simply must publish important news once it’s been revealed. But the Wikileaks situation confounds any model of objective journalists “finding facts” in the world. As the FAQ explains, “Wikileaks is only releasing cables in coordination with the actions of . . . five selected news organizations.” Like search engines, it challenges the traditional distinctions between conduit and content-provider that have governed our thinking about communications. As L & R put it,

One of the main difficulties with explaining WikiLeaks arises from the fact that it is unclear (also to the WikiLeaks people themselves) whether it sees itself and operates as a content provider or as a simple conduit for leaked data (the impression is that it sees itself as either/or, depending on context and circumstances). This, by the way, has been a common problem ever since media went online en masse and publishing and communications became a service rather than a product. . . . This might be why Assange and his collaborators refuse to be labelled in terms of “old categories” (journalists, hackers, etc.) and claim to represent a new Gestalt on the world information stage.

I have to admit, my initial read of this story was over-influenced by media reports that described Wikileaks as “dumping” documents. In fact, they have been selective; as Glenn Greenwald explains, “They have not released “thousands” of cables; they’ve released 1,193 — less than 1/2 of 1% of the total they possess.”

But I do think I was right about one thing: the Wikileaks story reveals a dangerously overstretched “superpower.” When Russia recommends a Nobel Prize for Assange, you know that they are pretty confident in their ability to decouple from the US’s overindebted, hollowed out economy. Just as trillions of dollars in war spending have emptied our coffers, military prerogatives also led to the DOD’s “data deluge blowback.” As Lovink puts it:

In the ongoing saga called “The Decline of the US Empire”, WikiLeaks enters the stage as the slayer of a soft target. It would be difficult to imagine it being able to inflict quite same damage to the Russian or Chinese governments, or even to the Singaporean – not to mention their “corporate” affiliates. In Russia or China, huge cultural and linguistic barriers are at work, not to speak of purely power-related ones, which would need to be surmounted. Vastly different constituencies are also factors there, even if we are speaking about the narrower (and allegedly more global) cultures and agendas of hackers, info-activists and investigative journalists. In that sense, WikiLeaks in its present manifestation remains a typically “western” product and cannot claim to be a truly universal or global undertaking.

The irony, of course, is that in its quest for openness, Wikileaks is likely to provoke extraordinary responses from government that make our security apparatus more like that of Russia or China. Lovink notes some uncomfortable parallels between Wikileaks and those it opposes:

WikiLeaks displays a stunning lack of transparency in its internal organization. Its excuse that “WikiLeaks needs to be completely opaque in order to force others to be totally transparent” amounts, in our opinion, to little more than Mad magazine’s famous Spy vs. Spy cartoons. You beat the opposition but in a way that makes you indistinguishable from it.

WikiLeaks is also an organization deeply shaped by 1980s hacker culture, combined with the political values of techno-libertarianism that emerged in the 1990s. . . . Lack of commonality with congenial, “another world is possible” movements drives WikiLeaks to seek public attention by way of increasingly spectacular and risky disclosures, thereby gathering a constituency of often wildly enthusiastic, but generally passive supporters.

Assange reminds me a bit of the obsessed protagonist of Samuel Delany’s sci-fi novel Nova, with sensitive information playing the role in the Wikileaks drama that Illyrion plays in Delany’s work: a resource that can utterly shift the balance of power if it comes into the right hands. Assange sees an utterly corrupt status quo, and wishes to upset it. Projects like Wikileaks may well succeed in doing so. But, if the status quo could speak, it might warn, “Après moi, le déluge.” (And Zhou Enlai is probably still correct to say that it’s “too soon to tell” what the impact of that power shift was.)