Computer Ethics, Fall 2011

Corboy 423;  7:00-9:30 Th, Oct 27, Class 9

Readings:

Some patent papers

These are assigned reading.

Also read the section in Baase on software patents! (§4.5?)

1. Simpson Garfinkel, Patently Absurd, 1993
GARFINKEL, SIMSON
Garfinkel's article is pretty easy reading, pointing out some problems with software patents specifically.

2.Richard Stallman on PatentsSee
 full size image, 2002





Stallman is against software patents, of course. However, his case here is better than many open-source-related arguments; in fact, it is squarely aligned with the interests of software-development businesses.

3.Paul Graham, a computer scientist and one of the partners of the venture-capital firm Y Combinator, wrote a 2006 essay Are Software Patents Evil?

Graham makes the following claim early on:

One thing I do feel pretty certain of is that if you're against software patents, you're against patents in general. Gradually our machines consist more and more of software. Things that used to be done with levers and cams and gears are now done with loops and trees and closures. There's nothing special about physical embodiments of control systems that should make them patentable, and the software equivalent not.

Is this true?

Does it matter that Graham is also a radical proponent of using the lisp programming language, which everybody else stopped using in the 1990's?

Graham also says,

Frankly, it surprises me how small a role patents play in the software business. It's kind of ironic, considering all the dire things experts say about software patents stifling innovation, but when one looks closely at the software business, the most striking thing is how little patents seem to matter.

But that paragraph is about software companies being sued by other software companies, and not "patent trolls".

Graham also makes some other claims, in particular some about the role of the patent system in business competition generally. Check out what he says about Reveal.


Libel and Internet complaints about corporations

A selected few "sucks" sites. Search for (large company name) + "sucks" to find more.

mcspotlight.org
mclibel
uopsucks.com (university of phoenix)
placeholder site, but see here
walmartsucks.com
placeholder site
walmartsucks.org
you betcha!
gmsucks.net
domain lookup error
lyingscumbags.com
Ah, but there are anti-GM sites! Well, were.
fordREALLYsucks.com
going strong!
mychryslersucks.com
mine doesn't, though! 1990 and still going strong!
ibmsucks.org
active!
microsoftsucks.org
tied to applesucks.org
applesucks.org
tied to microsoftsucks.org
googlesearchsucks.com
maybe some evil after all?
paypalsucks.com
these folks are really ticked off!
bankofamericasucks.com
everything is user-contributed
whylinuxsucks.org
a serious site on linux improvement

How do these sites get away with this? Sometimes, suing just does not have the desired effect.

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.
http://www.organicconsumers.org/mclib.html

[NB: why are Morris & Steel identified above by their occupations?]

They were distributing pamphlets claiming:

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 "culpably 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.

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

Rachel Ehrenfeld wrote Funding Evil, a rather polemical book about how terrorist organizations gain funding through drug trafficking and other illegal strategies. The first edition appeared in 2003. The book apparently alleges that Sheik Khalid bin Mahfouz is a major participant in terrorist fundraising.  Mahfouz sued in England, although the book was not distributed there; however, 23 copies were ordered online from the US. In 2005 the court in England found in Mahfouz's favor, describing Ehrenfeld's defense as "material of a flimsy and unreliable nature" (though some of that may have been related to the costs of mounting a more credible defense, and Ehrenfeld's conviction that no such defense should be necessary), and ordered Ehrenfeld to pay $225,000.

Ehrenfeld filed a lawsuit against Mahfouz in the US, seeking a declaration that the judgement in England could not be enforced here. The case was dismissed because the judge determined that the court lacked jurisdiction over Mahfouz. A second ruling arriving at the same conclusion came in 2007.

In May 2008, New York state passed the Libel Tourism Protection Act, that offers some form of protection against enforcement in New York state of libel claims from other countries. However, Mahfouz has not sought to collect, and probably will not.


gatt.org, and cyberhoaxes

(compare wto.org and wipo.int)

Is this funny? Or serious? Are there legitimate trademark issues?

Note that it keeps changing.

Try to find the links that are actually there.
gatt.org links and Dow's Acceptable Risk seem pretty permanent.



Planned Parenthood v American Coalition of Life Activists

With libel, §230 has been interpreted as saying you have immunity for posting material originated from someone else, if your understanding was that the other party intended the material for posting.

With "threat speech", the courts have held that speech qualifies as that if a reasonable listener (or reader) feels that a threat is intended. Your intentions may not count at all.

In the case Planned Parenthood v American Coalition of Life Activists (ACLA, not to be confused with ACLU, the Americal Civil Liberties Union), Planned Parenthood sued ACLA for a combination of "wanted" posters and a website that could be appeared as threatening abortion providers. In 1993 a "wanted" poster for Dr David Gunn, Florida, was released and Dr Gunn was later murdered. Also in 1993, a wanted poster for Dr George Patterson was released and Dr Patterson was subsequently murdered. In 1994 a poster for Dr John Britton, Florida, was released and Dr Britton was later murdered, along with James Barrett.

I've never been able to track down any of these individual posters (which is odd in and of itself), but here's a group one:

The Deadly Dozen


When US Rep Gabrielle Giffords (D, AZ) was shot in January 2011, some people pointed to the poster below from Sarah Palin's site, and from her twitter line, Don't Retreat, Instead - RELOAD! A June 2010 post from Giffords election opponent Jesse Kelly said, "Get on Target for Victory in November Help remove Gabrielle Giffords from office Shoot a fully automatic M16 with Jesse Kelly [sic]"

But there are multiple differences. Perhaps the most important is that no new crosshair/target/wanted-style posters have been released by anyone since the Tucson shootings. Under what circumstances might people view this kind of poster as a threat? Should candidates and political-action committees be required to address perceived threats?

targeting congress with crosshairs


After the murders of Drs Gunn, Patterson and Britton, the name of the abortion provider was displayed as strikethrough on a website run by Neal Horsley.

Why would a judge issue rules on what typestyle (eg strikethrough) a website could use? Did the judge in fact issue that ruling, or is that just an exaggeration from the defendants? The actual injunction (from the DC judge ruling link, below) states

In addition, defendants are enjoined from publishing, republishing, reproducing and/or distributing in print or electronic form the personally identifying information about plaintiffs contained in Trial Exhibits 7 and 9 (the Nuremberg Files) with a specific intent to threaten. [emphasis added by pld]

That is much more general than just "no strikethrough", though the strikethrough was widely interpreted as a "specific intent to threaten". But intent is notoriously hard to judge, and in fact (as we shall see) the case ended up hinging more on the idea that Horsley's site would be interpreted as a threat by a neutral observer.

The "Nuremberg" website was founded by 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 defense "it was legal at the time" is not accepted.)

In 1998, Dr Bernard Slepian was killed at home. The day before, according to Horsley, his only intent was that cited above; the day after, he added Dr Slepian's name, with a strikethrough. Slepian's name had not been there before, leading Horsley to protest very strongly that his site could not have been a threat against Slepian. (The lawsuit was filed by other physicians who felt it was a threat to them; Horsley is silent on this.)

Original site: christiangallery.com, christiangallery.com/atrocity, /atrocity/aborts.html
Archived site without strikethrough: cs.luc.edu/pld/ethics/nuremberg/aborts.html (though the strikethroughed page follows!)
Achived site with strikethrough: cs.luc.edu/pld/ethics/nuremberg/aborts2.html (Dr Gunn is col 2 row 8).
Archived site of Horstley's own before-and-after: cs.luc.edu/pld/ethics/nuremberg/californicate.htm (part of his own attempt to justify his site to the public).

After looking at these, consider Horsley's claim,

All we’ve done, and all really anybody’s accused us of doing, is printing factually verifiable information... If the First Amendment does not allow a publisher to publish factually verifiable information, then I don’t understand what the First Amendment’s about.

Do you think this is an accurate statement?

The civil case was filed in 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 was added to the case. By 1997, the internet was no longer new, but judges were still having difficulty figuring out what standards should apply.

Horsley's actual statements are pretty much limited to facts and to opinions that are arguably protected. He does not appear to make any explicit calls to violence.

Planned Parenthood claimed the site "celebrate[s] violence against abortion providers".

For a while, Horsley was having trouble finding ISPs willing to host his site. The notion of ISP censorship is an interesting one in its own right. The Stanford site, below, claims that OneNet, as the ISP (carrying traffic only) for the webhosting site used by Horsley,demanded that Horsley's content be removed.

Here's a Stanford student group's site about the case. The original lawsuit was brought in 1995 by Planned Parenthood (and some abortion providers) against American Coalition of Life Activists (ACLA) et al. Horsley was not party to that suit; his Nuremberg site was in fact not created until 1997. The original lawsuit was over threatening "Wanted" posters depicting abortion providers; Horsley's site (but not Horsley himself) was added later. In retrospect it seems reasonable to think that, if it were not for the context created by the "Wanted" posters, there would have been no issue with the Nuremberg Files web pages.

The central question in the case is whether the statements amounted to a "true threat" that met the standard for being beyond the bounds of free-speech protection.

The judge (1999) gave the jury instructions to take into account the prevailing climate of violence against abortion providers; the jury was also considering not an ordinary civil claim but one brought under the Freedom of Access to Clinic Entrances act (FACE), which allows lawsuits against anyone who "intimidates" anyone providing an abortion. (The first-amendment issue applies just as much with the FACE law as without.) The jury returned a verdict against the ACLA for $100 million, and the judge granted a permanent injunction against the Nuremberg Files site (Horsley's).

DC Judge (full decision at http://webpages.cs.luc.edu/~pld/ethics/nuremberg/PPvACLA_trial.html):

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.

See also the following paragraph. 

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.

The case was appealed to a 9th Circuit 3-judge panel, which overturned the injunction. Judge Kosinski based his ruling on NAACP v Claiborne Hardware, SCOTUS 1982. Synopsis: 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 (writer of the decision of the three-judge panel that heard the case), and Berzon (of Batzel v Cremers)

See http://webpages.cs.luc.edu/~pld/ethics/nuremberg/PPvACLA_9th_enbanc.pdf

5 pages of plaintiffs / defendants

Here's Rymer's problem with the NAACP v Claiborne analogy: 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 its 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."

Watts' speech was held to be political hyperbole. This case overturned long precedent regarding threats.

Particular attention to NAACP v Claiborne. Distinction: there was no actual 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. Did ACLA intend to "intimidate"?

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.

The Supreme court refused to hear the case. The 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.

See also Baase, p 190, Exercise 3.23:

An anti-abortion Web site posts lists of doctors who perform abortions and judges and politicians who support abortion rights. It includes addresses and other personal information about some of the people. When doctors on the list were injured or murdered, the site reported the results. A suit to shut the site for inciting violence failed. A controversial appeals court decision found it to be a legal exercise of freedom of speech. The essential issue is the fine line between threats and protected speech, a difficult issue that predates the Internet. Does the fact that this is a Web site rather than a printed and mailed newsletter make a difference? What, if any, issues in this case relate to the impact of the Internet?

Finally, you might wonder why, with all the threats of violence made during the course of the civil rights movement by whites against blacks, the case NAACP v Claiborne that comes to us is an allegation of violence by blacks against blacks, filed by whites. I think it's safe to say that the answer has nothing to do with who made more threats, and everything to do with who could afford more lawyers.




Hit Man

this was a book published by Paladin Press, written by "Rex Feral", supposedly a pseudonym for a woman who writes true-crime books for a living. It is likely a work of fiction.

In 1993, James Perry murdered Mildred Horn, her 8-year-old son Trevor, and nurse Janice Saunders. He was allegedly hired by Lawrence Horn. In Rice v Paladin Enterprises (1997), the federal court of appeals (4th circuit) held that the case could go to jury trial; ie freedom-of-press issues did not automatically prevent that.

Many of the specifics of the Perry murders were out of the book. Many of them are rather compellingly "obvious": pay cash, rent a car under an assumed name, steal an out-of-state license plate, use an AR-7 rifle (accurate but collapsible), make it look like a robbery

The book also explains how to build a silencer, which is not at all obvious; Perry allegedly did just this.

The following are from the judge's decision. "Stipulations" are alleged facts that are not being contested at the present time.

"The parties agree that the sole issue to be decided by the Court . . . is whether the First Amendment is a complete defense, as a matter of law, to the civil action set forth in the plaintiffs' Complaint. All other issues of law and fact are specifically reserved for subsequent proceedings." (emphasis added)

Paladin has stipulated not only that, in marketing Hit Man, Paladin "intended to attract and assist criminals and would-be criminals who desire information and instructions on how to commit crimes," J.A. at 59, but also that it "intended and had knowledge" that Hit Man actually "would be used, upon receipt, by criminals and would-be criminals to plan and execute the crime of murder for hire." J.A. at 59 (emphasis added). Indeed, the publisher has even stipulated that, through publishing and selling Hit Man, it assisted Perry in particular in the perpetration of the very murders for which the victims' families now attempt to hold Paladin civilly liable. J.A. at 61. [note 2] [242]

Notwithstanding Paladin's extraordinary stipulations that it not only knew that its instructions might be used by murderers, but that it actually intended to provide assistance to murderers and would-be murderers which would be used by them "upon receipt," and that it in fact assisted Perry in particular in the commission of the murders of Mildred and Trevor Horn and Janice Saunders, the district court granted Paladin's motion for summary judgment and dismissed plaintiffs' claims that Paladin aided and abetted Perry, holding that these claims were barred by the First Amendment as a matter of law.

What's going on here? Why did Paladin stipulate all that? It looks to me like Paladin was acknowledging the hypotheticals as part of its claim that they didn't matter, that the First Amendment protected them.

The court ruled it did not:

long-established caselaw provides that speech--even speech by the press--that constitutes criminal aiding and abetting does not enjoy the protection of the First Amendment

Past cases that lost:

Brandenberg v Ohio [discussed above under PP v ACLA] was cited as a case of protected speech advocating lawlessness. But this case, due to Paladin's stipulations [!!], was much more specific.


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. However, this is (a) speculative (though likely), and (b) irrelevant to the question of whether some criminals bought it.

Look at the current Paladin website. Does it look like their primary focus is encouraging criminals? Secondary focus?

To find Hitman, google "hit man" "rex feral", or search Amazon.com. Most references as of 2009 are to those selling used copies of the physical book;  check out amazon.com for current prices of used editions. The site http://mirror.die.net/hitman still has the online text.

Other bad materials:

Note the Encyclopedia of Jihad has a significant political/religious component!

4th-circuit opinion: http://www.bc.edu/bc_org/avp/cas/comm/free_speech/rice.html


Should the law generally make sense? See http://xkcd.com/651



Anti-Defamation League, Combating Extremism in Cyberspace

Threats

As we've seen above, threats must be "true threats" to be unprotected speech, but the standard for that is pretty much the eye of the recipient.

Harassing speech

Harassment of another individual is generally not protected by free-speech laws. Computer-mediated forms of such harassment can include emails, open and closed discussion forums, texts, or even blogs. Harassment must be
Generally, harassment must also be directed at an individual.

Incitement to Imminent Violence

The Brandenburg standard is still good law here: inflammatory speech is permitted unless it is intended to, and likely to, incite imminent lawless action. But specific threats are separate.

Group Libel

This remains a long shot. The idea is that if someone says hateful things about a specific ethnic, racial, or religious group, any member of that group can file a lawsuit.

Criminal Libel

An even longer shot, except in Colorado.


ISPs and Hate Speech

ISPs are not obligated to do anything about hate speech on their customers' web sites. They are not obligated to remove anything objectionable or defamatory.

However, many ISPs do have Terms of Service forbidding hate speech.

Universities and Hate Speech

Arthur Butz, a faculty member at Northwestern University, has a sideline of writing essays denying the Holocaust. For a long time, his faculty web page at Northwestern contained links to all his other writings. As of now, it appears that his other writings have been moved to another site.

Northwestern has always had a policy allowing faculty to use the internet for a wide variety of purposes. In their Rights and Responsibilities policy, Rights comes at the beginning and the first item under it is Intellectual Freedom, where it is stated that,

The University is a free and open forum for the expression of ideas, including viewpoints that are strange, unorthodox, or unpopular. The University network is the same.

Note that the immediately following item on the list is Safety from Threats. That is, despite the above, Northwestern does not tolerate harassment.

Other universities have disallowed student/faculty use of the internet except for narrow academic purposes, perhaps with cases like Butz's in mind.


German regulation of hate speech

Germany's constitution states that

everybody has the right freely to express and disseminate their opinions orally, in writing or visually and to obtain information from generally accessible sources without hindrance.

However, German criminal law forbids
The last one has been used successfully to prosecute Holocaust deniers.

In other words, despite the wording of the German constitution, speech is much more regulated than in the United States. That is, the German courts have interpreted their free-speech clause less broadly than has the US Supreme Court.

German law has generally tolerated the existence of off-shore hate-speech websites accessible in Germany. However, there have been attempts to prosecute when (a) there were relatively stronger grounds for claiming jurisdiction, and (b) there were things that might have been done to restrict access within Germany.

In 1995, Nebraskan neo-Nazi Gary Lauck was arrested on a trip to Denmark, extradited to Germany, and convicted for the website he ran in the United States. He served four years in prison. Some of the materials on the US website were in the German language; it is not clear whether Lauck was deliberately trying to target Germans.

In 1998, Felix Somm -- at the time the German manager of CompuServe -- was convicted in Germany because CompuServe made certain pornography available in Germany. Somm's conviction was later overturned, apparently because he had asked CompuServe to block the material within Germany.

What if Somm, instead of asking CompuServe to block the material, had instead thrown up his hands and said it was beyond his control?

In 1999, the Australian Fred Tobin was arrested while on a trip to Germany, for a neo-Nazi site Tobin maintained in Australia; he was later convicted and served seven months in prison.

Canada also criminalizes hate speech: it is a criminal act to "advocate or promote genocide” or to willfully promote "hatred against any identifiable group".


Ultimately, the problem of jurisdiction for speech regulation is a difficult one. We'll come to that jurisdiction issue later, as a topic in and of itself.

International Convention on the Elimination of All Forms of Racial Discrimination (ICERD)

From the Anti-Defamation League site above:

... nations ratifying the [ICERD] convention are required to “declare an offence punishable by law” the dissemination of ideas “based on racial superiority or hatred.” Additionally, the convention requires these nations to “declare illegal and prohibit” all organizations and organized activities that “promote and incite racial discrimination.”

The United States signed the convention in 1966, but the Senate tacked the following on to the ratification resolution:

The Constitution and laws of the United States contain extensive protections of individual freedom of speech, expression and association. Accordingly, the United States does not accept any obligation under this Convention, in particular under articles 4 and 7, to restrict those rights, through the adoption of legislation or any other measures, to the extent that they are protected by the Constitution and laws of the United States

(Note that there is a long history of UN actions that various member states have declined to accept.)


LICRA v Yahoo

Baase, section 3.3.2; see also Marc Greenberg's article at http://www.btlj.org/data/articles/18_04_05.pdf. (Quotes below not otherwise cited are from Greenberg's article.)

Yahoo offered Nazi memorabilia for sale on its auction site. They were sued by LICRA (LIgue Contre le Racisme et l'Antisémitisme), joined by the UEJF, the Union of French Jewish Students. In France the sale of Nazi memorabilia is illegal.

This is a JURISDICTIONAL case that probably should be discussed elsewhere, except that it addresses a free-speech issue. But this is as good a time as any to start in on some of the rationales for a given court's claiming judicial jurisdiction related to an action that occurred elsewhere. Here are some theories, more or less in increasing order of "engagement":

In Batzel v Cremers, the California court decided it had jurisdiction perhaps because of the plaintiff test.

The LICRA v Yahoo case was heard in Paris by Judge Jean-Jacques Gomez, who explained the French law as follows:

Whereas the exhibition of Nazi objects for purposes of sale constitutes a violation of French law ..., and even more an affront to the collective memory of a country profoundly traumatised by the atrocities committed by and in the name of the criminal Nazi regime against its citizens and above all against its citizens of the Jewish faith . . . .

Judge Gomez decided they did have jurisdiction to hear the case. But Yahoo US has no assets in France! There was a separate company, Yahoo France, that controlled the yahoo.fr domain.

Judge Gomez based his jurisdictional decision on the so-called effects test: that the actions of Yahoo US had negative effects within France. Intent, or targeting, or direction do not enter; the effects test is perhaps the weakest basis for claiming jurisdiction. Gomez later explained some of his reasoning in an interview:

For me, the issue was never whether this was an American site, whether Yahoo had a subsidiary in France, the only issue was whether the image was accessible in France. It is true that the Internet creates virtual images, but to the extent that the images are available in France, a French judge has jurisdiction for harm caused in France or violations of French law.

But in the case of my decision, it was extremely simple: the Nazi collectibles were visible in France, this is a violation of French law, and therefore I had no choice but to decide on the face of the issue. Whether the site is all in English or not makes no difference. The issue of visibility in a given country is the only relevant issue.

Gomez issued his first interim order on May 22, 2000: that Yahoo US must use geolocation software to block access to its auction materials within France. It was estimated that 70% of French citizens could be blocked by the software alone, and that another 20% would be blocked by adding a page that said

    To continue, click here to certify that you are not in France

What would the purpose of that be? Clearly, French neo-Nazis would likely simply lie. However, other French citizens would be reminded that these objects violated French law. What is the purpose of laws?

In November 2000, Gomez issued a second interim order fining Yahoo US 100,000 francs per day for noncompliance, after three months. (The May order had listed 100,000 euros, some ten times as much.) He included in his ruling evidence that not only had Yahoo US done things that had effects in France, but also that Yahoo US was targeting France; the latter claim was based on the observation that, for most French viewers visiting yahoo.com, the advertisements displayed were in French.

When Yahoo indicated they might not comply, based on First Amendment grounds, LICRA & UEJF suggested they might go after the assets of yahoo.fr, though this was perhaps just overheated hyperbole.

At about the same time, Rabbi Abraham Cooper, of the Simon Wiesenthal Center, issued his own argument against a First Amendment defense (from Greenberg):

 It’s good to try to wrap yourself around free speech . . . but in this case it doesn’t wash. Television stations, newspapers and magazines refuse to accept some advertisements in an effort to marginalize viewpoints and products that the vast majority of Americans think are disrespectful or even potentially dangerous. Internet companies . . . should just do what American companies have been doing for half a century: reserve the right not to peddle bigotry.

The US side

At this point, Yahoo US did two things. The first was to decide, internally, based on arguments by Rabbi Cooper and others, to ban the sale of all "hate material" on its US site, including both Nazi and KKK memorabilia. Books (eg Hitler's Mein Kampf) and items issued by governments (eg German coins bearing the swastika). Allegedly this decision was made "independently" of the decision of the Paris court, though the review was pretty clearly prompted by that decision. The continued sale of books and coins would not bring yahoo US into full compliance with Judge Gomez' order. Here's a recent quote from http://help.yahoo.com/l/us/yahoo/shopping/merchant/pricegrabber-04.html;_ylt=AqCUIEnwDUz2L4y3cFY9q3fuqCN4 spelling out the rule:

Any item that promotes, glorifies, or is directly associated with groups or individuals known principally for hateful or violent positions or acts, such as Nazis or the Ku Klux Klan. Official government-issue stamps and coins are not prohibited under this policy. Expressive media, such as books and films, may be subject to more permissive standards as determined by Yahoo! in its sole discretion.

The second action Yahoo US took was to sue in US court for a Declaratory Judgement that the French court did not have jurisdiction within the US, and that no French order or claim could be enforced in the US. This case was Yahoo v LICRA (the reverse order of the French case LICRA v Yahoo). Such declaratory judgement orders are common in contract and IP cases (especially patent cases); if party A threatens party B with a contract or patent-infringement claim, and B believes that the suit is meritless, they can bring an action for declaratory judgement that forces A's hand (and which also may put the case into a more B-friendly forum). In order to ask for a declaratory judgement, there must be an actual controversy at hand; the question may not be moot or speculative.

The case was heard by US District Court Judge Fogel, of California. There were two legal issues to be addressed:
Note that in the first item here, the question of whether the French court had jurisdiction over Yahoo US is turned around. The second question hinges on whether the controversy is "ripe" for settlement.

For a finding of jurisdiction, there is a three-part test:
The second two parts are straightforward; the purposeful-availment test is trickier. LICRA and UEJF had (1) sent a cease-and-desist letter to Yahoo, (2) had requested that the French court put restrictions on Yahoo's actions within the US, and (3) had used the US marshal's office to serve papers on Yahoo US. Judge Fogel argued that the defendants here engaged in actions that not only had effects on Yahoo US, but which were also targeted against Yahoo US; the act of targeting is strong evidence that the purposeful-availment standard is met.

(Yahoo had tried to claim that, because LICRA used a yahoo.com email address, they had thus agreed to Yahoo's terms of service requiring US jurisdiction; apparently judge Fogel didn't seriously consider that.)

The second part of the issue is the "ripeness" standard, that there is in fact an actual controversy. LICRA and UEJF insisted that they were satisfied with Yahoo US's compliance, and that they had no intention of asking for enforcement of the 100,000-franc-per-day judgement. Yahoo, for its part, insisted that (a) they were not in full compliance with the French court's order, as they still allowed the sale of Nazi books and coinage, and (b) that their free-speech rights were being chilled by the threat of the judgement, even if further legal steps never materialized. This is a core issue with free-speech cases: it is often the case that party A treads on party B's free-speech rights simply by making a threat; B might comply for the time being, but might still want a definitive ruling.

Judge Fogel agreed, and issued his ruling in Yahoo's favor.

The Appellate decision

The 9th Circuit Appellate court, ruling en banc, held that the US likely did have jurisdiction in the case against LICRA and UEJF, specifically because of LICRA and UEJF's actions against Yahoo US in French court. BUT the case was directed to be "dismissed without prejudice", as it was not yet ready to be decided. It was not in fact "ripe"; there was no active controversy.

(same thing happened to US v Warshak, when the 6th circuit en banc ruled the question was not "ripe")

The appellate decision was based squarely on the idea that Yahoo US insisted that its change of policy regarding the sale of "hate" artifacts was not related to the French case. As a result of that, Yahoo could not show that their speech was in any way chilled. Therefore, there was no actual controversy. The Appellate court also took into account the lack of interest on the part of LICRA and UEJF of pursuing the penalties. Finally, paradoxically, the Appellate court hinted that Yahoo could not really have believed that, if LICRA or UEJF did ask for penalties, that any US court would have gone along; any US court would reject such a judgement (perhaps on First Amendment grounds despite the 9th circuit's wording here):

[E]nforcement of that penalty is extremely unlikely in the United States. Enforcement is unlikely not because of the First Amendment, but rather because of the general principle of comity under which American courts do not enforce monetary fines or penalties awarded by foreign courts.

(Note that the US court is equating the French award with a fine or penalty, rather than a  civil judgement. I am still not sure exactly which category actually applied.)

Ironically, because Yahoo took the ethical approach of banning the sale of hate materials, their legal case became moot.

Judge William Fletcher:

1. Here is a summary of Yahoo's position:

For its part, while Yahoo! does not independently wish to take steps to comply more fully with the French court’s orders, it states that it fears that it may be subject to a substantial (and increasing) fine if it does not. Yahoo! maintains that in these circumstances it has a legally cognizable interest in knowing whether the French court’s orders are enforceable in this country.

2. The French court did not ask for restrictions on US citizens. If geolocation filtering works, in other words, the issue is moot:

The legal question presented by this case is whether the two interim orders of the French court are enforceable in this country. These orders, by their explicit terms, require only that Yahoo! restrict access by Internet users located in France. The orders say nothing whatsoever about restricting access by Internet users in the United States.

3. Maybe Yahoo is ok in France. (Note, however, that the uncertainty still hangs over Yahoo.)

A second, more important, difficulty is that we do not know whether the French court would hold that Yahoo! is now violating its two interim orders. After the French court entered the orders, Yahoo! voluntarily changed its policy to comply with them, at least to some extent. There is some reason to believe that the French court will not insist on full and literal compliance with its interim orders, and that Yahoo!’s changed policy may amount to sufficient compliance.

At other points, Judge Fletcher uses the fact that neither LICRA nor UEJF have taken further steps as additional evidence that there is no "active controversy". Another sentence along this line is

Until it knows what further compliance (if any) the French court will require, Yahoo! simply cannot know what effect (if any) further compliance might have on access by American users.

And here's the kicker, dismissing the "chilled speech" issue:

Without a finding that further compliance with the French court’s orders would necessarily result in restrictions on access by users in the United States, the only question in this case is whether California public policy and the First Amendment require unrestricted access by Internet users in France. [italics in original - pld]

The First Amendment applies in the US, not in France. Not that Judge Fletcher doesn't get this:

We are acutely aware that this case implicates the First Amendment, and we are particularly sensitive to the harm that may result from chilling effects on protected speech or expressive conduct. In this case, however, the harm to First Amendment interests — if such harm exists at all — may be nowhere near as great as Yahoo! would have us believe.

But:

Yahoo! refuses to point to anything that it is now not doing but would do if permitted by the orders.

That, of course, was due to Yahoo's ethical decision not to allow the sale of hate materials.

Judge Fletcher then states

In other words, as to the French users, Yahoo! is necessarily arguing that it has a First Amendment right to violate French criminal law and to facilitate the violation of French criminal law by others. As we indicated above, the extent -- indeed the very existence -- of such an extraterritorial right under the First Amendment is uncertain.

The first phrase here, about French users, was omitted by some sites that reported on the decision [including me -- pld]; that omission decidedly changes Fletcher's meaning, which is that the First Amendment does not necesarily protect French users.

Fletcher concludes with the following, implicitly addressing Yahoo's issue that they were still allowing the sale of Mein Kampf in violation of the French orders:

There is some possibility that in further restricting access to these French users, Yahoo! might have to restrict access by American users. But this possibility is, at this point, highly speculative. This level of harm is not sufficient to overcome the factual uncertainty bearing on the legal question presented and thereby to render this suit ripe.

These issues led to the declaration of non-ripeness.

This is a JURISDICTIONAL case that was left undecided, officially, though the 9th Circuit certainly hinted that France did not have authority to demand restrictions on US speech.

At about the same time, there was growing improvement in advertising-based geolocation software (IP addr -> location); the earlier blocking estimates rose from 70% to well over 90%.




Illinois Eavesdropping Law

Should you be able to record the police in Illinois in public? Illinois law says this is illegal (actually, that it is a felony):

(a) A person commits eavesdropping when he:
(1) Knowingly and intentionally uses an eavesdropping device for the purpose of hearing or recording all or any part of any conversation or intercepts, retains, or transcribes electronic communication unless he does so
(A) with the consent of all of the parties to such conversation or electronic communication or
(B) in accordance with Article 108A or Article 108B of the "Code of Criminal Procedure of 1963", approved August 14, 1963, as amended;

However, in a similar case in Massachussetts, which has a similar law, the First Circuit Appellate Court upheld not only overturning the law, but that the person doing the recording had a right to sue the officers for false arrest (meaning, in effect, that the officers should have known the law was unconstitutional).

See http://www.thenewamerican.com/usnews/constitution/8819-court-denies-police-immunity-in-video-arrest.

From the decision at http://www.ca1.uscourts.gov/pdf.opinions/10-1764P-01A.pdf:

We conclude, based on the facts alleged, that Glik was exercising clearly-established First Amendment rights in filming the officers in a public space

On the other hand, Judge Richard Posner of the Seventh Circuit has spoken in favor of the law [http://www.suntimes.com/news/7639298-418/judge-casts-doubt-on-aclu-challenge-to-law-forbidding-audio-recording-of-cops.html]:

“If you permit the audio recordings, they’ll be a lot more eavesdropping. … There’s going to be a lot of this snooping around by reporters and bloggers,” U.S. 7th Circuit Judge Richard Posner said. “Yes, it’s a bad thing. There is such a thing as privacy.”

Imagine whether or not an anti-recording law should apply to the press. Would that be consistent with the First Amendment [Congress shall make no law ... abridging the freedom of speech, or of the press]? Then the question becomes whether the press is distinguishable from everyone else.

As another example of the "who is the press" question, many states have "shield laws" for the press regarding subpoenas of sources: the government cannot subpoena reporters notes or the identity of sources except in very unusual conditions. What constitutes the "press" here? Should an established blogger qualify? What about a beginning blogger?

The Illinois shield law has the following definitions:

Sec. 8‑902. Definitions.

(a) "Reporter" means any person regularly engaged in the business of collecting, writing or editing news for publication through a news medium on a full‑time or part‑time basis . . . .
(b) "News medium" means any newspaper or other periodical issued at regular intervals whether in print or electronic format and having a general circulation; a news service whether in print or electronic format; a radio station; a television station; a television network; a community antenna television service; and any person or corporation engaged in the making of news reels or other motion picture news for public showing.

This definition of a reporter would appear to cover a "regular" blogger; there is no mention of employment or a news-publishing business.

Finally, should newspapers be able to apply their shield laws to anonymous online comments left regarding articles? See http://www.rcfp.org/newsitems/index.php?i=7086.