Ethics Week 8, October 27 Finish Section 230 "Hate speech" Notes on the midterm: 1: compare with Diebold case, where students *were* allowed to publish source code. 5: Most of you understood it as a zero-day exploit, and I tried to accept that, but it doesn't really amount to that. Look at MIT slides on MIFARE card ================================================================================= Section 230 odds and ends ===================================== Gould partial dissent in Batzel v Cremers: Quotes: The majority gives the phrase "information provided by another" an incorrect and unworkable meaning that extends CDA immunity far beyond what Congress intended. (1) the defendant must be a provider or user of an "interactive computer service"; (2) the asserted claims must treat the defendant as a publisher or speaker of information; and (3) the challenged communication must be "information provided by another information content provider."2 The majority and I agree on the importance of the CDA and on the proper interpretation of the first and second elements. We disagree only over the third element.3 Majority: part (3) is met if the defendant believes this was the author's intention. This is convoluted! Why does the author's intention matter? The problems caused by the majority's rule would all vanish if we focused our inquiry not on the author's [Smith's] intent, but on the defendant's [Cremers'] acts pld: So far so good. But then Gould shifts direction radically: Gould: We should hold that the CDA immunizes a defendant only when the defendant took no active role in selecting the questionable information for publication. pld: Why not interpret (3) so defendant is immunized if author *did* intend publication on internet? Gould: A person's decision to select particular information for distribution on the Internet changes that information in a subtle but important way: it adds the person's imprimatur to it rephrased: Congress: chat rooms, discussion boards, and listservs do have special needs. pld: but why then add the "and users" lanuage to the bill? These aren't *users*. Gould: If Cremers made a mistake, we should not hold that he may escape all accountability just because he made that mistake on the Internet. ======== There have been attacks on the Section 230 defense, but courts have been unwilling to date to allow exceptions, or to restrict coverage to "traditional ISPs" where there is no role in selection of the other material being republished. There is still some question though about what happens if you *do* select the material. Cremers played a very limited editorial role. What if you go looking for criticism of someone and simply quote all that? And what if you're a respected blogger and the original sources were just Usenet bigmouths? EFF: One court has limited Section 230 immunity to situations in which the originator "furnished it to the provider or user under circumstances in which a reasonable person...would conclude that the information was provided for publication on the Internet...." Be wary, too, of editing that changes the meaning. Simply deleting some statements that you thought were irrelevant but which the plaintiff thought were mitigating could get you in trouble! ======== ======== Zeran v AOL Someone posted a fake ad for T-shirts with tasteless slogans related to the Oklahoma City bombing, listing Zeran's home number. For a while Zeran was getting hostile, threatening phone calls at the rate of 30 per hour. Zeran lost his initial lawsuit against AOL. Zeran appealed to the 4th circuit, arguing that § 230 leaves intact liability for interactive computer service providers who possess *notice* of defamatory material posted through their services. Publisher liability: liability even without knowledge of defamatory material's inclusion: Distributor liability: liability for knowingly distributing defamatory material Zeran argued that AOL had distributor liability once he notified them of the defamatory material. Zeran lost. In part because he "fails to understand the *practical* implications of notice liabililty in the interactive-computer-service context" ****** Section 230 case: expands rules to include "distributor" liability. ============================ Still to be resolved: what if I quote other defamatory speakers on my blog in order to "prove my point"? Batzel v Cremers doesn't entirely settle this; it's pretty much agreed Cremers did not *intend* to defame Batzel. There's also the distributor-liability issue left only partly settled in Zeran. Barrett v. Rosenthal, Nov. 20, 2006: california supreme court: Rosenthal posted statements on Internet newsgroups about two doctors who operated Web sites aimed at exposing fraud in alternative medicine. One of the doctors was accused of "stalking". From www.gannett.com/go/newswatch/2006/november/nw1130-3.htm In the case before the California Supreme Court, the doctor claimed that by warning Rosenthal that Bolen's article was defamatory, she "knew or had reason to know" that there was defamatory content in the publication. Under traditional distributor liability law, therefore, Rosenthal should therefore be responsible for the substance of Bolen's statements, the doctor claimed. The court rejected the doctor's interpretation, saying that the statute rejects the traditional distinction between publishers and distributors, and shields any provider or user who republishes information online. The court acknowledged that such "broad immunity for defamatory republications on the Internet has some troubling consequences," but it concluded that plaintiffs who allege "they were defamed in an Internet posting may only seek recovery from the original source of the statement." See also wikipedia article en.wikipedia.org/wiki/Barrett_v._Rosenthal ****** Section 230 case: affirms core ruling ======== Jane Doe v MySpace: Jane Doe acting on behalf of Julie Doe, her minor daughter She was 13 when she created a myspace page, 14 when she went on a date with someone age 19 who then assaulted her. On the face of it, Doe claims that the suit is about MySpace failing to protect children, or for failing to do SOMETHING. But the court held that it's really about lack of liability for Julie Doe's posting. This isn't *libel* law at all. The court argued that: It is quite obvious that the underlying basis of Plaintiff's claims is that, through postings on MySpace, *** and Julie Doe met and exchanged personal information which eventually led to ... the sexual assault. Therefore the case *is* about publication, and therefore MySpace is immune under Section 230. ****** Section 230 case: applies to liability re physical harm, too. ======== Similar case (Doe v Bates): Yahoo was sued because someone posted child pornography on a yahoo group. (Note that Yahoo here *is* a traditional ISP). ================================================================================ ================================================================================ Brief overview of McLibel case McSpotlight.org: mclibel uopsucks.com no longer available (uop = university of phoenix) walmartsucks.com nla walmartsucks.org you betcha target-sucks.com you betcha gmsucks.net domain lookup error fordREALLYsucks.com goin' strong! intelsucks.org server could not be found microsoftsucks.org ties to applesucks.org The McLibel case Unemployed ex-postman Dave Morris and part-time bar worker Helen Steel called McDonald's a multinational corporate menace - abusing animals, workers and the environment and promoting an unhealthy diet. [NB: why are Morris & Steel identified above by their *occupations*?] They were distributing pamphlets claiming: * mcDonalds land use led to displacement & hunger for third-world farmers * locals starve while food crops are exported for use as animal feed * rainforest destruction * destruction of tribal lifestyles in rainforest * mcdonalds food is high in fat * encourages overeating * encourages children to think McD's is "normal" * hamburgers are made of dead animals * unions are not allowed Note that their story had NOTHING to do with the internet! Morris & Steel raised £35,000 for their defense, most of which apparently went to paying for transcripts. From mcspotlight.org/case/trial/story.html: Mr Justice Bell took two hours to read his summary to a packed court room. He ruled that Helen and Dave had not proved the allegations against McDonald's on rainforest destruction, heart disease and cancer, food poisoning, starvation in the Third World and bad working conditions. But they had proved that McDonald's "exploit children" with their advertising, falsely advertise their food as nutritious, risk the health of their most regular, long-term customers, are "culpabably responsible" for cruelty to animals, are "strongly antipathetic" to unions and pay their workers low wages. And so, Morris & Steel were held liable for £60,000 in damages. "Libel Terrorism" McDonalds had to hire spies to infiltrate London Greenpeace to get names of members involved. Morris & Steel raised £35,000 for their defense, most of which apparently went to paying for transcripts. On 15th February 2005, the European Court of Human Rights in Strasbourg declared that the mammoth McLibel case was in breach of the right to a fair trial and right to freedom of expression. ===================================================================== "Libel Terrorism": a play on "libel tourism", the practice of suing for Libel in the UK (or another friendly venue, though it's hard to beat the UK's "defendant must prove truth" doctrine, plus the "plaintiff need not prove malice" part) New York now has the Libel Terrorism Protection Act. Case: Sheikh Khalid bin Mahfouz v Rachel Ehrenfeld ===================================================================== gatt.org, and cyberhoax Is this funny? Or serious? Note that it keeps changing. Try to find the links that are actually there. Draw attention to site names. ============================================================================ ============================================================================ What about "hate sites": * denying Holocaust * anti-Jewish in other ways * anti-homosexual What about: christiangallery.com/atrocity christiangallery.com/atrocity/aborts.html http://www.xs4all.nl/~oracle/nuremberg/aborts.html (with strikethrough) Is this a hate site? (links to these without the fetus-parts pictures are on my website) ===================================== Defamation Prior Restraint is seldom allowable ====================================================================== ====================================================================== Planned Parenthood v American Coalition of Life Activists "Nuremberg" site was founded by Neal Horsley, with the nominal idea of gathering evidence for the day when abortion providers might be tried for "crimes against humanity". (In such cases, the argument "it was legal at the time" is not accepted.) Case filed 1995, after some abortion providers had been murdered (eg Dr Hugh Short) and "wanted" posters were issued by ACLA for others. There was a federal law, the 1994 Federal Freedom of Access to Clinic Entrances Act (FACE), that provided protections against *threats* to abortion providers. Horsley's site was created in 1997, and added to the case. Horsley's actual statements are pretty much limited to facts and to opinions that are arguably protected. He does *not* make any explicit calls to violence. 1998: Dr Barnett Slepian is killed at home District court jury trial (1999): jury found several items to be "true threat to bodily harm" Judge: I totally reject the defendants' attempts to justify their actions as an expression of opinion or as a legitimate and lawful exercise of free speech in order to dissuade the plaintiffs from engaging in providing abortion services. Issued injunction, $100 million verdict. Under current free-speech standards, you ARE allowed to threaten people. You ARE allowed to incite others to violence. You are NOT allowed to incite anyone to imminent violence, and you are NOT allowed to make threats that you personally intend to carry out. 9th Circuit 3-judge panel overturned the injunction. Judge Kosinski, basing his ruling on NAACP v Claiborne Hardware, SCOTUS 1982 The NAACP had organized a boycott of some white-owned businesses, and had posted activists to take down names of black patrons. The NAACP liaison, Charles Evers [brother of Medgar Evers] had stated publicly that those ignoring the boycott would be "disciplined" and at one point said "If we catch any of you going in any of them racist stores, we're gonna break your damn neck." The Supreme Court found in the NAACP's favor, on the grounds that there was no evidence Evers had authorized any acts of violence, or even made any direct threats (eg to specific individuals). Kozinski argues that whatever the ACLA was doing was less threatening than what Evers was doing, and therefore dismisses the case. Full 9th-circuit then heard the case, _en banc_ Ruling is by judge Rymer, dissents by judges Reinhardt, Kozinski (of PP 3-judge PP v ACLA), and Berzon (of Batzel v Cremers) 5 pages of plaintiffs / defendants Here's Rymer's problem with the NAACP situation: 7121/41, at [8] Even if the Gunn poster, which was the first "WANTED" poster, was a purely political message when originally issued, and even if the Britton poster were too, by the time of the Crist poster, the poster format itself had acquired currency as a death threat for abortion providers. Gunn was killed after his poster was released; Britton was killed after his poster was released; and Patterson was killed after his poster was released. [Neil Horsley claims no one was listed on the Nuremberg Files list until *after* they were attacked.] Here's Rymer's summary: 7092/12, 3rd paragraph We reheard the case en banc because these issues are obviously important. We now conclude that it was proper for the district court to adopt our long-standing law on "true threats" to define a "threat" for purposes of FACE. FACE itself requires that the threat of force be made with the intent to intimidate. Thus, the jury must have found that ACLA made statements to intimidate the physicians, reasonably foreseeing that physicians would interpret the statements as a serious expression of ACLA's intent to harm them because they provided reproductive health services. ... 7093/13 We are independently satisfied that to this limited extent, ACLA's conduct amounted to a true threat and is not protected speech threats are not the same as libel: 7099/19 Section II: (p 7098/18) discussion of why the court will review the facts (normally appeals courts don't) as to whether ACLA's conduct was a "true threat" Section III (p 7105) ACLA claims actions were "political speech" and not an incitement to imminent lawless action. Posters have no explicitly threatening language! 7106/26, end of 1st paragraph: Further, ACLA submits that classic political speech cannot be converted into non-protected speech by a context of violence that includes the independent action of others. This is a core problem: can context be taken into account? Can possible actions of others be taken into account? Text of FACE law: Whoever... by force or threat of force or by physical obstruction, intentionally injures, INTIMIDATES or interferes with or attempts to injure, intimidate or interfere with any person because that person is or has been [a provider of reproductive health services] [n]othing in this section shall be construed . . . to prohibit any expressive conduct ... protected from legal prohibition by the First Amendment This subjects them to civil remedies, though perhaps not prior restraint. Cases cited: Brandenburg v Ohio, SCOTUS 1969: 1st amendment protects speech advocating violence, so long as the speech is not intended to produce "imminent lawless action" (key phrase introduced) and is not likely to produce such action. This was an important case that strengthened and clarified the "clear and present danger" rule (speech can only be restricted in such situations) first spelled out in Schenck v US, 1919. Brandenburg introduced the "imminent lawless action" standard. Clarence Brandenburg was a KKK leader who invited the press to his rally, at which he made a speech referring to the possibility of "revengeance" [sic] against certain groups. No specific attacks OR TARGETS were mentioned. Robert Watts v United States, SCOTUS 1969 Watts spoke at an anti-draft rally (actually a DuBois Club meeting): "They always holler at us to get an education. And now I have already received my draft classification as 1-A and I have got to report for my physical this Monday coming. I am not going. If they ever make me carry a rifle the first man I want to get in my sights is L.B.J." Held to be political hyperbole. Overturned long precedent regarding threats. Particular attention to NAACP v Claiborne. Distinction: there was no violence then! Decision was that Evers' speeches did not incite illegal activity, and thus did not lead to business losses. No "true threat" determination was made nor needed to be made. Also, Evers' overall tone was to call for *non-violent* actions such as social ostracism. This leaves Watts as the only SCOTUS case dealing with "true threats" issue. Roy v United states: USMC private hears Nixon is coming and says "I am going to get him" Whether a particular statement may properly be considered to be a threat is governed by an objective standard -- whether a reasonable person would foresee that the statement would be interpreted by those to whom the maker communicates the statement as a serious expression of intent to harm or assault. Note this "reasonable person" standard. No hiding behind "that's not really what we meant". Also, intent to carry out is not required: It is not necessary that the defendant intend to, or be able to carry out his threat; the only intent requirement for a true threat is that the defendant intentionally or knowingly communicate the threat. [communicates it as a serious threat, that is, not just hyperbole] ACLU amicus brief: The person must have *intended* to threaten or intimidate. Rymer: this intent test is included in the language of FACE; ACLA has met this test long ago. Two dissents argue that the speaker must "actually intend to carry out the threat, or be in control of those who will" But Rymer argues that the court should stick with the "listener's reaction"; ie the reasonable-person standard again. Conclusion of this line of argument (intent v how it is heard): 7116/36, at [7] Therefore, we hold that "threat of force" in FACE means what our settled threats law says a true threat is: a statement which, in the entire context and under all the , circumstances a reasonable person would foresee would be interpreted by those to whom the statement is communicated as a serious expression of intent to inflict bodily harm upon that person. So defined, a threatening statement that violates FACE is unprotected under the First Amendment. Crucial issue: the use of the strikeout and grey-out. This is what crosses the line. 7138/53, 2nd paragraph: The posters are a true threat because, like Ryder trucks or burning crosses, they connote something they do not literally say, yet both the actor and the recipient get the message. ========== Supreme court refused to hear the case. Ninth Circuit had established that the speech in question met certain standards for being a true threat, and the ACLA would have had to argue that some factual interpretations were mistaken. But the Supreme Court does not generally decide cases about facts; they accept cases about significant or conflicting legal principles. ================================================================= ================================================================= ============= Hit Man published by Paladin Press, written by "Rex Feral", supposedly a single mom who writes true-crime books for a living. It is likely a work of fiction. Someone was killed by someone using the book In Rice v Paladin Press, the federal court of appeals held that the case *could* go to jury trial; ie freedom-of-press issues did not automatically prevent that. A popular theory was that after Paladin Press settled the case (which they did, under pressure from their insurer), the rights to the book ended up in the public domain. Paladin claims otherwise; however, the Utopian Anarchist Party promptly posted the entire book at overthrow.com and that was that. [Other parties may also have posted the book independently] (The bootleg copies don't have the diagrams, though) It has been claimed that _Hit Man_ was sold almost entirely to non-criminals who simply like antiestablishment stuff. Check out amazon.com for current prices of used editions. Other bad materials: Encyclopedia of Jihad Bomb-making instructions generally Note EofJ has significant political/religious component! ================================================================= ================================================================= Dozier Internet Law, www.cybertriallawyer.com [sort of a step back to copyright] 1. Lots of solid mainstream copyright cases: architectural designs jewelry designs advertising work (sitforthecure.com) stolen websites for: gamers sites physicians small businesses 2. Their AMAZING user agreement: dozierinternetlaw.cybertriallawyer.com ================================================================= corporate cybersmear: essential problem: * employee posts something critical at a site, "anonymously" * employer sues site, claiming libel * site caves, and provides real identity of poster * suit is dropped, poster is FIRED. ======================================================= Blocking and censorship Eugene Volokh on the need for editing! That is, in a world where everyone has the right of speech, how do you decide to whom to listen? ======================================================= Stalking and free speech ====================================================================== Is source code speech? Well, is it? Cases where it's been debated: * DMCA anti-circumvention (eg deCSS) * encryption Suppose you make F-16 fighters. You need an export permit to sell these oversees. What about if you make open-source encryption software? Ditto! Even if you GIVE IT AWAY!! BOOKS were exempt. The rule applied only to machine-readable forms. For a while, there was a machine-readable T-shirt with RSA on it. ====================================================================== ======================================================================