Paper 3: Speech

Due: April 18, 2008 Comp 317/417, Dordal

Choose one of the following two topics:

1. Blogger immunity

Section 230 of the CDA was interpreted by Judge Berzon of the 9th Circuit in the case Batzel v Cremers as meaning that bloggers (or listserv owners) could not be sued for libel (or, for that matter, held responsible any other way) for material they included that originated on the Internet with someone else.

You are either to defend this interpretation, or else propose a different set of rules for blogger responsibility that you feel would be fairer.

Keep in mind the following points:

Individual bloggers who criticize corporations are at risk of completely meritless SLAPP libel suits simply to shut them up (cf McLibel). Most small bloggers cannot afford to defend against even one such suit.
Individuals who are defamed on the internet may have a very difficult time restoring their reputations.
Sometimes there are legitimate wide variations of opinion (eg vegans v carnivores regarding McDonalds, or residents v developers).
The Berzon opinion made no allowances for the bloggers' selection or editing (as long as the original sense was preserved) of materials, as long as the material originated elsewhere on the Internet.
One reason for traditional (eg newspaper) publisher liability is that publishers do make selections, and what they select becomes associated with their reputation.
One of the explanations for Section 230 was the desire of Congress to fix the Stratton Oakmont v Prodigy problem.
The difference between Prodigy-type providers and average bloggers
The difference between disinterested reporters and those with an axe to grind, and how hard it can be to tell them apart.

The actual text of Section 230 should not play a role in your essay; the point is not whether the law was correctly interpreted, but what rules are appropriate for bloggers.

2. Is source code considered to be speech?

Here are two circuit-court decisions addressing the question of whether first-amendment free-speech protection applies to source code:

Junger v Daley, about encryption software potentially needing a munitions license, 6th circuit, for
Universal v Reimerdes, about publication of deCSS, 2nd circuit, against

Read the relevant parts of each decision (last page of Junger; under the subhead "Constitutional Challenges Based on the First Amendment" in Reimerdes), and then write an essay addressing the question as to whether source code is entitled to first-amendment free-speech protection. Your argument should be based on utilitarian ethics, not the specifics of the law, but should otherwise address whether considering source code to be protected by the first amendment is overall likely to be good for US society as a whole, or not. (Deontological ethics doesn't really get very far here, it seems to me, but if you feel differently you can take that approach too.)

The first case here deals with encryption software that was part of a computer-ethics course; at the time, encryption software was classified as a munition, for which a special export permit was needed if it was to be made available overseas. Permits were not granted if the key length was nontrivial. The second case deals with the deCSS software that allows computers to read and display DVD movies; the site 2600.com had written an article about the software and wanted to make the software itself available so readers could see what was going on. The DMCA outright forbids technology that circumvents copy protection; generally speaking, if first-amendment protections are held to apply then these trump "ordinary" laws.

You are allowed to consider "partial" free-speech coverage, or otherwise to propose limits on when (if at all) source code is protected.

You do not, of course, know all possible situations in which source-code-as-free-speech might be an issue. Therefore, it is impossible to know for certain all possible stakeholders. However, in general stakeholders consist of ordinary computer users, companies which might be hiding secrets in obfuscated software, the federal government which might find some software to be "dangerous", and society at large due to advances disseminated by protected source code.

One argument is that source code could be printed in a newspaper and thus is entitled to newspaper-like protections; another is that essentially nobody reads source code in the way they do the newspaper. To the extent that source code is similar to technical documentation, bear in mind that free-speech protection does extend to documentation, even in cases where that documentation might document how to circumvent DMCA-inspired copy protection.

3. Discussion-board rules

Propose a set of rules for a university online discussion-board system (accessible by students and faculty only), and explain how the rules are intended to be interpreted and how they are expected to reduce or avoid problems.

Currently a small IT group administers the system. New discussion forums are created by request. Occasionally the purpose of such a request is to move an irritating thread off the current forum. Users are permitted to request pseudonyms for the purpose of posting, though they must be "registered" with someone.

You are to focus on rules for responsible conduct within an existing forum. Here are a few things to consider (or not):

What are the overall conduct rules
Who enforces the conduct rules
What are the consequences for misconduct (and what will not be a consequence).
In particular, what should be considered "hate speech" and how will it be dealt with?
To what extent are existing partially-unwritten netiquette guidelines sufficient?
When the real identity of a pseudonymous user is revealed, and to whom.
Whether stalking should be covered by the rules
Should the university have a standard for "threats" that is broader than the existing legal standard?

Try to anticipate real-world situations. One possible direction is to address the "hate-speech codes" implemented at some campuses (though that brings up the area of "political correctness", and some of you may prefer to avoid that). (I was supposed to try to locate some of these codes, but ended up adding the topic above instead. The issue is that some universities have elaborate rules governing intellectual disputes; you can address these or not as you wish.)

You are also free to ask to write about a different speech-related topic; just be sure to get advance permission!