Category: Cyber Civil Rights

5

Cary Sherman and the Lost Generation

The RIAA’s Cary Sherman had a screed about the Stop Online Piracy and PROTECT IP Acts in the New York Times recently. Techdirt’s Mike Masnick brilliantly gutted it, and I’m not going to pile on – a tour de force requires no augmentation. What I want to suggest is that the recording industry – or, at least, its trade group – is dangerously out of touch.

Contrast this with at least part of the movie industry, as represented by Paramount Pictures. I received a letter from Al Perry, Paramount’s Vice President Worldwide Content Protection & Outreach. He proposed coming here to Brooklyn Law School to

exchange ideas about content theft, its challenges and possible ways to address it. We think about these issues on a daily basis. But, as these last few weeks [the SOPA and PROTECT IP debates] made painfully clear, we still have much to learn. We would love to come to campus and do exactly that.

Jason Mazzone, Jonathan Askin, and I are eagerly working to have Perry come to campus, both to present Paramount’s perspective and to discuss it with him. We’ll have input from students, faculty, and staff, and I expect there to be some pointed debate. We’re not naive – the goal here is to try to win support for Paramount’s position on dealing with IP infringement – but I’m impressed that Perry is willing to listen, and to enter the lion’s den (of a sort).

And that’s the key difference: Perry, and Paramount, recognize that Hollywood has lost a generation. For the last decade or so, students have grown up in a world where content is readily available via the Internet, through both licit and illicit means; where the content industries are the people who sue your friends and force you to watch anti-piracy warnings at the start of the movies you paid for; and where one aspires to be Larry Lessig, not Harvey Weinstein. Those of us who teach IP or Internet law have seen it up close. In another ten years, these young lawyers are going to be key Congressional staffers, think tank analysts, entrepreneurs, and law firm partners. And they think Hollywood is the enemy. I don’t share that view – I think the content industries are amoral profit maximizers, just like any other corporation – but I understand it.

And that’s where Sherman is wrong and Perry is right. The old moves no longer work. Buying Congresspeople to pass legislation drafted behind closed doors doesn’t really work (although maybe we’ll find out when we debate the Copyright Term Extension Act of 2018). Calling it “theft” when someone downloads a song they’d never otherwise pay for doesn’t work (even Perry is still on about this one).

One more thing about Sherman: his op-ed reminded me of Detective John Munch in Homicide, who breaks down and shouts at a suspect, “Don’t you ever lie to me like I’m Montel Williams. I am not Montel Williams.” Sherman lies to our faces and expects us not to notice. He writes, “the Protect Intellectual Property Act (or PIPA) was carefully devised, with nearly unanimous bipartisan support in the Senate, and its House counterpart, the Stop Online Piracy Act (or SOPA), was based on existing statutes and Supreme Court precedents.” Yes, it was carefully devised – by content industries. SOPA was introduced at the end of October, and the single hearing that was held on it was stacked with proponents of the bill. “Carefully devised?” Key proponents didn’t even know how its DNS filtering provisions worked. He argues, “Since when is it censorship to shut down an operation that an American court, upon a thorough review of evidence, has determined to be illegal?” Because censorship is when the government blocks you from accessing speech before a trial. “A thorough review of evidence” is a flat lie: SOPA enabled an injunction filtering a site based on an ex parte application by the government, in contravention of a hundred years of First Amendment precedent. And finally, he notes the massive opposition to SOPA and PROTECT IP, but then asks, “many of those e-mails were from the same people who attacked the Web sites of the Department of Justice, the Motion Picture Association of America, my organization and others as retribution for the seizure of Megaupload, an international digital piracy operation?” This is a McCarthyite tactic: associating the remarkable democratic opposition to the bills – in stark contrast to the smoke-filled rooms in which Sherman worked to push this legislation – with Anonymous and other miscreants.

But the risk for Sherman – and Paramount, and Sony, and other content industries – is not that we’ll be angry, or they’ll be opposed. It’s that they’ll be irrelevant. And if Hollywood takes the Sherman approach, rather than the Perry one, deservedly so.

Cross-posted at Info/Law.

0

Tempest in Tempe: First Amendment in the Desert

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):

  1. It was a technical mistake;
  2. Change.org was spamming ASU; and
  3. 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.

0

The E.U. Data Protection Directive and Robot Chicken

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…

2

Supporting the Stop Online Piracy Act Protest Day

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.

1

The Fight For Internet Censorship

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.

16

Bigoted Harassment, Alive and Well Online

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.

0

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

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.

Read More

1

Exporting the First Amendment

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.    Read More

7

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

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.” Read More

3

Scoring Ourselves to Economic Death

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.