Computer Ethics, Summer 2011

Some patent papers

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?

Batzel v Cremers

One piece of the CDA survived: §230:

No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider. [Wikipedia]

Should this liability be there, in light of §230? Does §230 mean that a company cannot be found liable as publisher or speaker for email created by employees?

Since this case, there have been MANY others decided by application of this decision. See eff.org's section on Free Speech, http://www.eff.org/issues/free-speech.

There have also been many attacks on §230 immunity. Some limitations may come, someday.

Publisher liability (except when eliminated by §230) exists even without knowledge of defamatory material's inclusion.

Distributor liability is not exempted by §230. It is liability for knowingly distributing defamatory material. However, in Zeran v AOL (below), the courts found that prior notice doesn't automatically make for distributor liability.

Most likely approach to attack §230 immunity (2010): distributor liability.

§230 odds and ends

There is still some question though about what happens if you do actively 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 §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

This was a §230 case that expanded the rules to include at least some distributor liability.

Someone posted a fake ad for T-shirts with tasteless slogans related to the Oklahoma City bombing, listing Kenneth Zeran's home number. Zeran had nothing to do with the post (although it is not clear whether the actual poster used Zeran's phone intentionally). 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 "distributor" 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"; note that the court here once again tried to understand the reality of the internet. The court also apparently felt that AOL was still acting more as publisher than distributor, at least as far as §230 was concerned.

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 affirms core §230 ruling

Rosenthal posted statements on Internet newsgroups about two doctors who operated Web sites aimed at exposing fraud in alternative medicine. Her posts quoted an allegation by Tim Bolen that one of the doctors engaged in "stalking".

From www.gannett.com/go/newswatch/2006/november/nw1130-3.htm

In the case before the California Supreme Court, the doctor [Barrett] 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."

Barrett could still sue Bolen. But Bolen might not have had any money, and Barrett would have to prove that Bolen's original email, as distributed by Bolen, was defamatory. If Bolen sent it privately, or with limited circulation, that might be difficult.

See also wikipedia article http://en.wikipedia.org/wiki/Barrett_v._Rosenthal

Rosenthal was arguably even more of an Ordinary User than Ton Cremers.

In Donato [v Moldow], two members of the Emerson Borough Council [New Jersey] sued a Web site operator and numerous individuals after they used pseudonyms when posting on the Web site for "defamation, harassment, and intentional infliction of emotional distress." (74) The appellants argued that Stephen Moldow, the website operator, was liable for the damages because he was the publisher of the website. (75) Much to their chagrin, the trial judge found that Moldow was immune from liability under the Communications Decency Act, (76) and the appellate court agreed. (77) The court reasoned that:

The allegation that the anonymous format encourages defamatory and otherwise objectionable messages 'because users may state their innermost thoughts and vicious statements free from civil recourse by their victims' does not pierce the immunity for two reasons: (1) the allegation is an unfounded conclusory statement, not a statement of fact; and (2) the allegation misstates the law; the anonymous posters are not immune from liability, and procedures are available, upon a proper showing, to ascertain their identities. (78)

Craigslist and Prostitution

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. Note that 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 in fact about publication, and therefore MySpace is immune under Section 230.

Criminal Libel

Google Conviction in Italy

• BBC: google execs convicted in Italy
• google blog: http://googleblog.blogspot.com/2010/02/serious-threat-to-web-in-italy.html
• New York Times: http://www.nytimes.com/2010/02/25/technology/companies/25google.html

spam

1996: aol v Cyber Promotions (Baase, p 161)
Note that CP sued aol for blocking CP's spam! Eventually AOL sued CP.

Intel-Hamidi case: Ken Hamidi sent email to 30,000 intel employees. Intel sued. It eventually reached the California Supreme Court, who ruled in Hamidi's favor.

Harris Interactive sued the Mail Abuse Prevention System, for blocking their opinion-poll email. One interesting claim by Harris is that they were "turned in" to MAPS by a competitor. Harris dropped the suit.

CAN-SPAM act

People have a right to send email. Sort of. Maybe not companies, though? 

Regulated classes of speech

All these categories are things that, once upon a time, private individuals seldom if ever got caught up in.

p 166: Commodity-Futures Trading Commission (CFTC): they required that, if you wrote about commodity futures, you needed a license. The regs were originally intended to cover traders, but CFTC applied them to newsletters too, and then the web. (These latter rules were deleted in 2000.)

New York State outlawed not only the direct sale of wine from out-of-state-wineries to New Yorkers, but also the advertising. What about web pages?

p 176: political campaign laws. Anything you do that is "coordinated" with a political campaign is considered to be a contribution. These are subject to limitations, and to reporting requirements.

McCain-Feingold: you cannot even mentioning a candidate's name or face within 60 days of an election.

In 2004, the Federal Election Commission was ordered by a judge to write rules extending the McCain-Feingold rules to the Internet.

How would this affect bloggers? Would they be silenced?

Note that the opposing candidates are VERY likely to file complaints.

2006 FEC rules on the internet: it's ok as long as you aren't paid, EVEN IF political activity is "in coordination with" the candidate.

2007: Supreme court struck down the McCain-Feingold restriction on issue ads.

2010: Supreme Court struck down most remaining restrictions on corporate speech

Home selling: if you list your house online, do you need a real-estate license?

Libel and Internet complaints about corporations

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

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:

• 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 "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.

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:

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?

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

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

That is much more general than just "no strikethrough", though the strikethrough was widely interpreted as a "specific intent to threaten".

The "Nuremberg" website 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 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,

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):

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:

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 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:

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)

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:

Past cases that lost:

• publishing advice on how to make illegal drugs
  
• publishing advice on how to cheat on your taxes

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:

• Encyclopedia of [Afghan] Jihad
• Bomb-making instructions generally

Note EofJ has significant political/religious component!

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

Anti-Defamation League, Combating Extremism in Cyberspace

Threats

Harassing speech

• persistent
• must inflict emotional harm

Incitement to Imminent Violence

Group Libel

Criminal Libel

ISPs and Hate Speech

Universities and Hate Speech

German regulation of hate speech

• defamation of the deceased
• incitement to violence and hatred
• public display of the Nazi swastika
  
• claiming as fact things that are demonstrably false

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

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":

• the "affects" test: the court decides that the remote action affects its own local citizens. A passive website would count here.
  
• the "affects intentionally" test: the court decides that the source intended to have an effect on its local citizens
• the "targeting" test: the court feels that the action was directed at its local citizens, with some level of intent.
• the "primarily affects" test: the court decides that the action's primary effect is on its local citizens
• the plaintiff test: the affected party (buyer or the one defamed, for example) lives in the local jurisdiction
• purposeful availment: by choosing to engage in local commerce, the remote entity "purposefully avails" itself of the legal system of the local country.
• contract: the remote site has a contract with parties in the local jurisdiction
  

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.

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?

The US side

• whether the US court had jurisdiction at all over LICRA and UEJF
• whether there was sufficient actual controversy that a declaratory judgement could be issued.
  

• LICRA & UEJF must have "purposefully availed" themselves of the right to conduct some US-based transaction, in some sense acknowledging their protection under US laws (specifically
  The non-resident defendant must purposefully direct his activities or consummate some transaction with the forum or resident thereof; or perform some act by which he purposefully avails himself of the privilege of conducting activities in the forum, thereby invoking the benefits and protections of its laws;)
  
• The claim must arise out of LICRA & UEJF's activities within the US
• The claim of jurisdiction must be "reasonable"

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):

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:

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

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

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

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

But:

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

Judge Fletcher then states

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:

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%.