Computers and Speech





Introduction
Communications Decency Act
    Batzel v Cremers
    More §230 Cases
    Anonymous postings
    Revenge Sites
    Criminal Libel
    Google in Italy
First-Person Libel
Threat Speech
    Planned Parenthood v ACLA
Anti-Defamation League
Germany and Hate Speech
LICRA v Yahoo
    Yahoo v LICRA
Google vs Censorship
Illinois and Eavesdropping
Libel Suits Against Employees
Source Code as Speech
    Encryption
    DRM Circumvention


Free Speech

The Founding Fathers probably had political speech in mind when drafting the First Amendment:

    Congress shall make no law ... abridging the freedom of speech, or of the press;

Right off the bat note the implicit distinction between "speech" and "the press": blogging wasn't foreseen by the Founding Fathers!

For that matter, the Founding Fathers did not foresee "functional" information: computer files, for example, that are in some ways speech-like, but which have significant consequences when executed or otherwise processed.

While in general laws tend towards a utilitarian justification, the right of free speech is seen as, while not absolute, still pretty fundamental. Specifically, speech may be restricted only if doing so is the least restrictive means of accomplishing the desired end. In this sense, freedom of speech under the US constitution can be seen as a fundamental duty of the government, more akin to deontological reasoning.

The courts have held that Congress can abridge "offensive" speech. Here are a few examples (some of which no longer apply):

Information about contraception used to be in the category of restricted speech.

For a while, it was illegal for family-planning clinics receiving federal funding to discuss abortion. Is this a speech restriction?

The following have been proposed as speech categories that should be banned:
Traditional categories for free speech categorization (Baase, 4e p 135 / 5e p 140)
Where should commercial websites fit? Where should personal websites (including blogs) fit?

The Citizens United decision was nominally about campaign-finance rules; Citizens United was a corporation that had produced a political film and sought to show it. They won, and their case was widely interpreted as giving free-speech rights to corporations. However, the text of the decision addressed some fundamental shifts in freedom of the press since the rise of the Internet:

The media exemption [allowing corporate free speech for "media" companies] discloses further difficulties with the law now under consideration. There is no precedent supporting laws that attempt to distinguish between corporations which are deemed to be exempt as media corporations and those which are not. "We have consistently rejected the proposition that the institutional press has any constitutional privilege beyond that of other speakers." .... With the advent of the Internet and the decline of print and broadcast media, moreover, the line between the media and others who wish to comment on political and social issues becomes far more blurred.

Traditionally (actually, even more so now) the government regulates broadcast TV and radio the most strongly. It is assumed that essentially all content must be appropriate for minors (the practical issue is sexual content; the other things are inappropriate for everybody and there's not as much debate . Cable TV has somewhat greater latitude, but is still subject to FCC regulation.

(The government has few if any rules about violence on TV, though laws are occasionally introduced into Congress. The feds did bring the V-chip to every US television; these are almost universally unused by consumers. Broadcasters have their own rules about violence, however. )

Note that the list above addresses governmental restrictions on free speech. There are also civil restrictions: if you say something defamatory, you may be sued for libel. Libel is perhaps the biggest issue for "ordinary" people, at least in terms of creating speech: blogs, websites, etc. Libel law creates:

There is also harassing speech, including "cyber-bullying" and stalking.



Regulated classes of speech

All these categories are of speech that once upon a time was regulated, but that once upon a time private individuals seldom if ever got caught up in.

Baase 4e p 152 / 5e p 158: the Commodity-Futures Trading Commission (CFTC) required that, if you wrote about commodity futures, you needed a license. The regulations 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?

Political campaign-finance 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.

Under the original terms of the McCain-Feingold act, you could not even include a candidate's name or face in a newspaper article 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.

The FEC issued these new Internet rules in 2006, deciding that blogging about candidates was ok as long as you weren't paid, even if the blogging was "in coordination with" the candidate.

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

2010: Supreme Court struck down most restrictions on corporate speech (the Citizens United case)

2014: Supreme Court struck down most campaign-donation caps on First Amendment grounds (McCutcheon v FEC)

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




What are we going to look at?


Sexual material , including pornography (though that is a pejorative term) has been regulated for a long time.

Miller v California, Supreme Court 1973 (unrelated to US v Miller 1976): this case established a three-part guideline for determining when something was legally obscene (as opposed to merely "indecent"):

For the internet, community standards is the problem: what community? This is in fact a huge problem, though it was already a problem with mail-order.

As the Internet became more popular with "ordinary" users, there was mounting concern that it was not "child-friendly". This led to the Communications Decency Act (CDA), next.


Communications Decency Act

In 1996 Congress passed the Communications Decency Act (CDA) (Baase 4e p 141 / 5e p 146). It was extremely broad.

From the CDA:

[it is forbidden to be someone who] uses any interactive computer service to display in a manner available to a person under 18 years of age, any comment, request, suggestion, proposal, image, or other communication that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards...

Which community?

On the internet, you cannot tell how old someone is.

Butler v Michigan, 1957: SCOTUS struck down a law making it illegal to sell material (pornography) in Michigan solely because it might be harmful to minors.

The CDA was widely viewed as an attempt by Congress to curry favor with a "Concerned Public", but knowing full well it was unlikely to withstand court scrutiny.

It did not. The Supreme Court ruled unanimously in 1997 that the censorship provisions were not ok: they were too vague and did not use the "least-restrictive means" available to achieve the desired goal.

The Child Online Protection Act (COPA) was passed in 1998: This still stuck bewith the "community standards" rule. The law also authorized the creation of a commission; this was the agency that later wanted some of Google's query data. The bulk of COPA was struck down.

The Children's Internet Protection Act (CIPA) was passed in 2000 (Baase, 4e p 142 / 5e p 147) Schools that want federal funding have to install filters. So do public libraries; however, libraries must honor patron requests to turn the filter off.

SCOTUS upheld CIPA in 2003.

The Chicago Public Library gave up on filters, but did install screen covers that make it very hard for someone to see what's on your screen. This both protects patron privacy AND protects library staff from what might otherwise be a "hostile work environment".

Baase has more on the library situation, 4e p 143/ 5e p 147


Filters

Filters are sort of a joke, though they've gotten better. However, they CANNOT do what they claim. They pretty much have to block translation sites and all "personal" sites, as those can be used for redirection; note that many sites of prospective congressional candidates are of this type. See peacefire.org. And stupidcensorship.com. And http://mousematrix.com/.

This is merely at the technical level. A more insidious problem with filtering is a frequent conservative bias. Peacefire documents an incident in 2000 where a web page with quotes about homosexuality was blocked. All the quotes, however, came from the websites of conservative anti-homosexuality sites, which were not blocked. At a minimum, one can expect that (as with the MPAA) the blocking threshold for information on homosexual sexuality will be lower than for heterosexual sexuality. (To be fair, some conservative sites, such as some sites relating to the Second Amendment, have also had trouble with blocks.)

Demo: use http://mousematrix.com/ to get to thepiratebay.org. (Or the Tor browser, but that's harder to set up.)

To a degree, problems with over-filtering in K-12 schools are not serious: student use of computers is fundamentally intended to support their education, and if a site needed for coursework is blocked then it is easily unblocked.

In the UK the rule is now to block all Internet pornography for residential customers, unless the customer has opted in. Other material -- not clearly specified -- is inevitably also blocked. The theory is that the majority of customers will be unwilling to choose "allow pornography" as an option, even if other material might be blocked too.

Note that filtering providers generally go to great lengths to keep their list of blocked sites secret.



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]

Why is this there?

Note that there is no limit of §230 to any particular area of law, eg libel. (Actually, there are limits if the issue is copyright law, or criminal law.)

Note also that §230 addresses "publisher" liability and "author" liability. Another form, not exempted, is "distributor" liability.

The actual law is here: http://www.law.cornell.edu/uscode/47/usc_sec_47_00000230----000-.html. Note in particular the exemption sections (e)(1) and (e)(2). Note also that section 230  is titled "Protection for private blocking and screening of offensive material".


History of this as applies to protecting minors from offensive material

Cubby v CompuServe: 1991

District court only, New York State (Does anyone remember CompuServe?) Giant pre-Internet BBS available to paid subscribers. The "rumorville" section, part of the Journalism Forum, was run by an independent company, Don Fitzpatrick Associates. Their contract guaranteed DFA had "total responsibility for the contents". Rumorville was in essence an online newspaper; essentially it was an expanded gossip column about the journalism industry. I have no idea who paid whom for the right to be present on CompuServe.

In 1990, Cubby Inc and Robert Blanchard planned to start a competing online product, Skuttlebut. This was disparaged in Rumorville. Cubby et al sued DFA & CompuServe for libel.

CompuServe argued they were only a distributor. The judge agreed that this meant they escaped liability, and granted summary judgement in their favor. The court ruled that they had no control at all over content. They are like a bookstore, or a distributor.

While CompuServe may decline to carry a given publication altogether, in reality, once it does decide to carry a publication, it will have little or no editorial control over that publication's contents. This is especially so when CompuServe carries the publication as part of a forum that is managed by a company unrelated to CompuServe.

CompuServe has no more editorial control over such a publication than does a public library, book store, or newsstand, and it would be no more feasible for CompuServe to examine every publication it carries for potentially defamatory statements than it would be for any other distributor to do so.

It was and is generally accepted that distributors have no liability for content (unless it can be proven that they encouraged the content).

(we'll come back to "distributor liability" later.)


Stratton Oakmont v Prodigy: New York state court, 1995. On a financial matters forum called "Money Talk," a Prodigy user (never identified) posted about Daniel Porush, the president of Stratton Oakmont, a financial services company. The remarks called Porush a "soon to be proven criminal" and that Stratton Oakmont was a "cult of brokers who either lie for a living or get fired"

Prodigy claimed the Compuserve defense in their motion for summary judgement.

Prodigy lost, because they promised to monitor for bad behavior on the board. At the very least, they CLAIMED to the public that they reserved the right to edit or remove messages. This was in fact part of Prodigy's family-oriented marketing. Prodigy was trying to do "family values" editing (including the deletion of profanity), and it cost them.

In legal terms, Prodigy was held to "publisher liability" rather than the weaker "distributor liability" because they CLAIMED to exercise editorial judgement.

Prodigy did have some internal confusion about whether they were for the "free expression of ideas" or were "family safe"

Prodigy's policy was to ban individual attacks, but not group attacks; anti-semitic rants did appear and were not taken down.

After Prodigy lost their motion for summary judgement, the case was settled; Prodigy issued a public apology. In Wall Street versus America by Gary Weiss, the claim is made that the settlement did not involve the exchange of money. See http://books.google.com/books?id=iOhGkYqaEdwC&pg=PA213&lpg=PA213&dq=wall+street+versus+america+porush&source=b...t=result, page 215: "No money changed hands. No money had to change hands."

Weiss also points out that four years later

... Porush and his partners were all carted off to federal prison. In 1999, Porush and other Stratton execs pleaded guilty to securities fraud and money laundering for manipulating a bunch of Stratton IPOs... Stratton really was a den of thieves. Porush really was a criminal. [italics in original - pld]

The film The Wolf of Wall Street is based on Stratton Oakmont. The character Danny Azoff is based on Daniel Porush, and is played by Jonah Hill.


Enter the CDA. §230 was intended to encourage family-values editing, because after the Stratton Oakmont case most providers were afraid to step in.

Whether this was specifically to encourage providers to remove profanity & obscenity, the nominal targets of the CDA, or whether it was just a compensatory free-speech-positive clause in an overall free-speech- very-negative law is not clear.

Most of Congress apparently did not expect the CDA to withstand judicial scrutiny.

Congressional documents suggest that fixing the Stratton Oakmont precedent was the primary purpose of §230. However, arguably the reason for fixing Stratton Oakmont was to protect ISPs and websites that did try to provide a "family-friendly" environment.



Batzel v Cremers summary

Robert Smith was a handyman who worked for Ellen Batzel at her North Carolina home, doing repairs to house and vehicles, in 1999. Batzel's house was filled with large paintings in old frames that looked European.

Smith claims:

  1. Batzel told him that she was "the granddaughter of one of Hitler's right-hand men"
  2. He overheard Batzel tell someone that she was related to Heinrich Himmler (or else this was part of conversation #1)
  3. He was told by Batzel the paintings were "inherited"

Smith developed the theory that the paintings were artwork stolen by the Nazis and inherited by Batzel.

Smith had a dispute with Batzel [either about payments for work, or about Batzel's refusal to use her Hollywood contacts to help Smith sell his movie script]. It is not clear to what extent this dispute influenced Smith's artwork theory.

Smith sent his allegations about Batzel in an email to Ton Cremers, who ran a stolen-art mailing list. Smith found Cremers  through a search engine. This is still 1999.

Smith claimed in his email that some of Batzel's paintings were likely stolen by the Nazis. (p 8432 of the decision, Absolute Page 5)

Smith sent the email to securma@museum-security.org

Cremers ran a moderated listserv specializing in this. He included Smith's email in his next release. Cremers exercised editorial control both by deciding inclusion and also by editing the text as necessary.

He included a note that the FBI had been notified.

Normal address for Cremer's list was: securma@xs4all.nl

Smith's emailed reply to someone when he found out he was on the list:

I [was] trying to figure out how in blazes I could have posted me [sic] email to [the Network] bulletin board. I came into MSN through the back door, directed by a search engine, and never got the big picture. I don't remember reading anything about a message board either so I am a bit confused over how it could happen. Every message board to which I have ever subscribed required application, a password, and/or registration, and the instructions explained this is necessary to keep out the advertisers, cranks, and bumbling idiots like me.

Some months later, Batzel found out and contacted Cremers, who contacted Smith, who continued to claim that what he said was true. However, he did say that he had not intended his message for posting.

On hearing that, Cremers did apologize to Smith.

Batzel disputed having any familial relationship to any Nazis, and stated the artwork was not inherited.

Batzel sued in California state court:

Cremers filed in Federal District Court for:

He lost on all three counts. (Should he have? We'll return to the jurisdiction one later. Jurisdiction is a huge issue in libel law!). The district court judge ruled that Cremers was not an ISP and so could not claim §230 immunity.

Cremers then appealed the federal issues (anti-SLAPP, jurisdiction, §230) to the Ninth Circuit, which simply ruled that §230 meant Batzel had no case. (Well, there was one factual determination left for the District Court, which then ruled on that point in Cremers' favor.)

 This was the §230 case that set the (famous) precedent. This is a major case in which both Congress and the courts purport to "get it" about the internet. But note that there was a steady evolution:

  1. the law Congress intended
  2. the law Congress actually wrote down
  3. how the Ninth Circuit interpreted the law


IS Cremers like an ISP here? The fact that he is editing the list he sends out sure gives him an active role, and yet it was Prodigy's active-editing role that the CDA §230 was arguably intended to protect.

Cremers is an individual, of course, while Prodigy was a huge corporation. Did Congress mean to give special protections to corporations but not individuals?

Cremers was interested in the content on his list, but he did not create much if any of it.

Prodigy was interested in editing to create "family friendliness". Cremers edited basically to tighten up the reports that came in.

Why does Communications Decency Act have such a strong free-speech component? Generally free speech is something the indecent are in favor of.

The appellate case was heard by the Ninth Circuit (Federal Appellate court in CA, other western states); a copy is at BatzelvCremers.pdf.  (Page numbers in the sequal are as_printed/relative).

Judge Berzon:

[Opening (8431/4)] There is no reason inherent in the technological features of cyberspace why First Amendment and defamation law should apply differently in cyberspace than in the brick and mortar world. Congress, however, has chosen for policy reasons to immunize from liability for defamatory or obscene speech "providers and users of interactive computer services" when the defamatory or obscene material is "provided" by someone else.

Note the up-front recognition that this is due to Congress.

Section 230 was first offered as an amendment by Representatives Christopher Cox (R-Cal.) and Ron Wyden (D-Ore.). (8442/15)

Congress made this legislative choice for two primary reasons. First, Congress wanted to encourage the unfettered and unregulated development of free speech on the Internet, and to promote the development of e-commerce. (8443/16) ...

(Top of 8445/18) The second reason for enacting § 230(c) was to encourage interactive computer services and users of such services to self-police the Internet for obscenity and other offensive material

[extensive references to congressional record]

(8447/20): In particular, Congress adopted § 230(c) to overrule the decision of a New York state court in Stratton Oakmont, 1995

Regarding question of why a pro-free-speech clause was included in an anti-free-speech law (or, more precisely, addressing the suggestion that §230 shouldn't be interpreted as broadly pro-free-speech simply because the overall law was anti-free-speech):

(8445/18, end of 1st paragraph): Tension within statutes is often not a defect but an indication that the legislature was doing its job.

8448/21, start of section 2. To benefit from § 230(c) immunity, Cremers must first demonstrate that his Network website and listserv qualify as "provider[s] or user[s] of an interactive computer service."

The District court limited this to ISPs [what are they?]. The Circuit court argued that (a) Cremers was a provider of a computer service, and (b) that didn't matter because he was unquestionably a user.

But could user have been intended to mean one of the army of Prodigy volunteers who kept lookout for inappropriate content? It would do no good to indemnify Prodigy the corporation if liability then simply fell on the volunteer administrators of Prodigy's editing system. Why would §230 simply say "or user" when what was meant was a specific user who was distributing content?

8450/23, at [12] Critically, however, § 230 limits immunity to information "provided by another information content provider."

Here's one question: was Smith "another content provider"? You can link and host all you want, provided others have created the material for online use. But if Smith wasn't a content provider, then Cremers becomes the originator.

The other question is whether Cremers was in fact partly the "provider", by virtue of his editing. Note, though, that the whole point of §230 is to allow (family-friendly) editing. So clearly a little editing cannot be enough to void the immunity.

Here's the Ninth Circuit's answer to whether Cremers was the content provider [emphasis added]:

8450/23, 3rd paragraph: Obviously, Cremers did not create Smith's e-mail. Smith composed the e-mail entirely on his own. Nor do Cremers's minor alterations of Smith's e-mail prior to its posting or his choice to publish the e-mail (while rejecting other e-mails for inclusion in the listserv) rise to the level of "development."

More generally, the idea here is that there is simply no way to extend immunity to Stratton-Oakmont-type editing, or to removing profanity, while failing to extend immunity "all the way".

Is that actually true?

The Court considers some other partial interpretations of §230, but finds they are unworkable.

Second point:

8584/27, 3rd paragraph Smith's confusion, even if legitimate, does not matter, Cremers maintains, because the §230(c)(1) immunity should be available simply because Smith was the author of the e-mail, without more. We disagree. Under Cremers's broad interpretation of §230(c), users and providers of interactive computer services could with impunity intentionally post material they knew was never meant to be put on the Internet. At the same time, the creator or developer of the information presumably could not be held liable for unforeseeable publication of his material to huge numbers of people with whom he had no intention to communicate. The result would be nearly limitless immunity for speech never meant to be broadcast over the Internet. [emphasis added]

The case was sent back to district court to determine this point (which it did, in Cremer's favor).

8457/30, at [19] We therefore ... remand to the district court for further proceedings to develop the facts under this newly announced standard and to evaluate what Cremers should have reasonably concluded at the time he received Smith's e-mail. If Cremers should have reasonably concluded,  for example, that because Smith's e-mail arrived via a different e-mail address it was not provided to him for possible posting on the listserv, then Cremers cannot take advantage of the §230(c) immunities.


Judge Gould partial dissent in Batzel v Cremers:

Quotes:

The majority gives the phrase "information provided by another" an incorrect and unworkable meaning that extends CDA immunity far beyond what Congress intended.

(1) the defendant must be a provider or user of an "interactive computer service"; (2) the asserted claims must treat the defendant as a publisher or speaker of information; and (3) the challenged communication must be "information provided by another information content provider."2 The majority and I agree on the importance of the CDA and on the proper interpretation of the first and second elements. We disagree only over the third element.3

Majority: part (3) is met if the defendant believes this was the author's intention. Gould: This is convoluted! Why does the author's intention matter?

Below, when we get to threatening speech, we will see that the issue there is not the author's intention so much as a reasonable recipient's understanding.

The problems caused by the majority's rule would all vanish if we focused our inquiry not on the author's [Smith's] intent, but on the defendant's [Cremers'] acts [pld: emphasis added here and in sequel]

So far so good. But then Gould shifts direction radically:

We should hold that the CDA immunizes a defendant only when the defendant took no active role in selecting the questionable information for publication.

How does this help Prodigy with family-friendly editing or Stratton-Oakmont non-editing? Why not interpret (3) so the defendant is immunized if the author did intend publication on internet? Though this interpretation wouldn't have much impact on later §230 cases; it is almost always the case that the author did intent internet publication.

Can you interpret §230 so as to (a) restrict protection to cases when there was no active role in selection, and (b) solve the Stratton Oakmont problem? Discuss.

Gould: A person's decision to select particular information for distribution on the Internet changes that information in a subtle but important way: it adds the person's imprimatur to it

No doubt about that part. But Congress said that chat rooms, discussion boards, and listservs do have special needs.

And why then add the "and users" lanuage to the bill? These aren't users.

Gould: If Cremers made a mistake, we should not hold that he may escape all accountability just because he made that mistake on the Internet.

Did Congress decide to differ here?




The (potential) corporate liability for sexual harassment is perhaps the most frequently cited justification for lack of employee privacy regarding company email.

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?

Arguably, the main issue here is a "hostile work environment", which is a none-of-the-above in terms of publisher, author, or distributor liability. This is an important point regarding the extent of §230 immunity. Companies are not being found liable as publisher or author, but rather for "tolerating" the authorship. (Still, the harassment generally has to be ongoing.)


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. The 2015 SAVE act is one legislative approach. Other 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.

Currently, the most likely approaches to attacking §230 immunity seem to be to claim distributor liability, or to claim that the hosting site actively contributed to the defamation or actively encouraged defamatory material.



Is there another interpretation of §230 that is more conservative?

1. Limiting protection to genuine ISP-like services (perhaps run by individuals). But the law has the phrase "or user"; is that consistent?

2. Limiting protection where the provider does not actively select material, but only removes material posted by others. This might have been what some in Congress had in mind, but is it workable?


[A Lot] More §230 Cases

There have been attacks on the §230 defense, but courts have been unwilling to date to allow exceptions, or to restrict coverage to "traditional ISPs" where there is zero role in selection of the other material being republished.

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. The ruling was by the Fourth Circuit.

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.


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. The Barrett v Rosenthal case (next) did to an extent address this situation, though.

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

The case was brought by doctors Stephen Barrett and Tim Polevoy against Ilena Rosenthal, who posted statements on an alternative-medicine newsgroup about the doctors. Barrett and Polevoy operated a website aimed at exposing fraud in alternative medicine. The statements posted by Rosenthal originated with Tim Bolen, an alternative-medicine activist, that included accusations that Dr Polevoy engaged in "stalking" in order to prevent the broadcast of a pro-alternative-medicine TV show.

Dr Barrett sued Rosenthal, arguing that Rosenthal bore distributor liability for re-circulating Bolen's remarks. Barrett had warned Rosenthal about the statement, thus meeting the "notice" requirement for distributor liability.
From http://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. Rosenthal may very well, however, have chosen Bolen's statement specifically because it portrayed Dr Barrett negatively. Cremers had no such intent.


Jane Doe v MySpace: §230 applies to liability re physical harm

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 §230.


Similar case (Doe v Bates): Yahoo was sued because someone posted child pornography on a yahoo group. (Note that Yahoo here is a traditional ISP). ("Doe" represented the anonymized parents of an alleged child victim.)


Anonymous Postings

Here's a §230 case from http://www.entrepreneur.com/tradejournals/article/189703316_3.html [dead link? Here is a link to a larger article: http://www.thefreelibrary.com/Combating+sexual+predators+online+and+conflicts+with+free+speech%3A+an...-a0189703316] dealing with websites that allowed anonymous postings:

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)

Note that Moldow was merely the operator here; he was not doing anything to select content.

In 2013, Illinois State Senator Ira Silverstein proposed the Internet Posting Removal Act, which

provides that a web site administrator shall, upon request, remove any posted comments posted by an anonymous poster unless the anonymous poster agrees to attach his or her name to the post and confirms that his or her IP address, legal name, and home address are accurate.

The request here can be filed by anyone.

While parts of this strategy make sense, and while sometimes anonymous postings can get quite ugly, the Supreme Court has long upheld the idea that we have a right to anonymous speech. But not defamatory speech. H
ere is an EFF link: https://www.eff.org/node/58343 about the case.

And on the subject of cranky anonymous postings, Nathan Matias claims at https://blog.coralproject.net/the-real-name-fallacy/ that anonymity is not the problem, and that posting anonymously is one of the best ways for women and people with "ethnic" names to be taken seriously. Matias also points out that the majority of online harassment is not anonymous, and there are specific settings in which people behaved quite well anonymously.

Illinois 2015

In December 2011 the Freeport Journal Standard published an article about William Hadley, then a candidate (ultimately successful) for the Stephenson County Board. An anonymous comment was left on the online version of the story by user "Fuboy" suggesting that Hadley was a child molester: "Hadley is a Sandusky waiting to be exposed...."

Hadley sued the paper and its parent corporation for defamation. That suit was settled within a few months, with the paper turning over to Hadley the IP address from which Fuboy's comment was posted.

Hadley then asked Comcast for the corresponding subscriber information. Comcast refused without a court order. Hadley then filed a subpoena for the account information, at which point Comcast informed Fuboy. Fuboy hired an attorney to represent Fuboy anonymously and attempt to quash the subpoena. 

The lower court and Illinois appellate court both upheld Hadley's subpoena, overruling Fuboy's argument that the speech was not defamatory because (a) Hadley was a public official, and actual malice was not evident, (b) everyone posts like this on newspaper sites, so defamation cannot be inferred, and (c) the post could have referred to anyone named Sandusky.

On June 18, 2015, the Illinois Supreme Court also upheld the subpoena, handing down an order requiring that Comcast reveal Fuboy's identity.

Note that Fuboy went to considerable expense to block the release of his identity. He turned out to be Frank Cook, a part-time Stephenson County states attorney.

The actual libel case was supposed to go to trial in December 2015, but I've heard nothing. My guess is that the case was settled.

Hadley claims to have spent about $35,000 on finding Fuboy's identity.




Here's a 2009 discussion of whether it is time to rein in §230:
http://arstechnica.com/tech-policy/news/2009/03/a-friendly-exchange-about-the-future-of-online-liability.ars. The participants are Adam Thierer of the Progress & Freedom Foundation and John Palfrey of Harvard law School. Palfrey believes §230 needs to be modified is cases like Jane Doe v MySpace, where Doe's daughter was assaulted due to material published on MySpace (specifically, due to email exchanges between Doe's daughter and the perpetrator). Palfrey believes that such cases should be heard by the courts, but that the steps MySpace took to protect minors would be taken into consideration. Note that Palfrey apparently believes in the fairness and appropriateness of the legal system; many ISPs, on the other hand, don't agree and would do just about whatever it took to make sure cases never arose.

At the bottom of the last page, Palfrey suggests some alternatives for §230.

Here's an example of §230 being used to defend event-ticket resellers; the claim is that the sites in question are essentially just auction sites, and that the actual reseller was the person who offered their ticket online.
http://cyberlaw.stanford.edu/packet/200810/section-230-cda-may-%E2%80%93-or-may-not-%E2%80%93-immunize-online-marketplace-provide

Note that §230 grants immunity without requiring any balancing obligations. There is no "takedown" requirement for "internet providers and users" to remove defamatory content on request, as there is for example in OCILLA (the DMCA version). There is not even a requirement that the internet provider/user cooperate with an investigation of the alleged defamation.

Here's a 2017 discussion: economist.com/news/business/21716661-platforms-have-benefited-greatly-special-legal-and-regulatory-treatment-internet-firms. Summary: the party cannot last forever.


Chicago Lawyers v Craigslist, 2006-2008

Craigslist has also been sued for posting housing ads that contained discriminatory language (from "no minorities" to "clean godly Christian male" to "no children"); most (all?) of these cases were also set aside on §230 grounds. One case was brought in 2006 by the Chicago Lawyers' Committee for Civil Rights; the Seventh Circuit (in Chicago) ruled that §230 protected Craigslist.

Sort of. The Seventh Circuit's decision included analysis that might be unnecessary if a strict §230 protection was applied. The Court noted that there were 30 million Craigslist posts a month, and that "fewer than 30 people ... operate the system". They did note that "Neither side's argument finds much support in the statutory text" of §230; the Seventh Circuit is clearly unhappy with the interpretation of §230 as a form of immunity. Instead, they suggest "[w]hy not read §230(c)(1) as a definitional clause rather than as an immunity from liability", that is, it declares that an ISP is not an author and not a publisher. They also hinted that full §230 protection might apply only to those who did some content monitoring (which completely reverses the idea that Compuserve was automatically not liable but Prodigy might be).

Still, at the end of the day the Seventh Circuit went along with the usual interpretation of §230:

What §230(c)(1) says is that an online information system must not "be treated as the publisher or speaker of any information provided by" someone else. Yet only in a capacity as publisher could craigslist be liable under [the Fair Housing Act].

It is possible that the Seventh Circuit would be less inclined to reject online distributor liability than the Fourth or Ninth Circuits.

In 2008, the Ninth Circuit ruled en banc in the case Fair Housing Council v Roommates.com Inc that roommates.com was not entitled to §230 immunity for housing discrimination on their site because they actively encouraged it. The online roommates.com questionnaire included several illegal questions (eg about race), and you had to answer them in order to complete your housing application.


Dart v Craigslist, 2009

Cook County Sheriff Tom Dart sued Craigslist for hosting advertisements for prostitution. Dart also claimed that Craigslist took on a more active role than simply publishing by virtue of maintaining categories like "adult services" and "w4m" (women for men), and by providing a search function that might enable users to search for ads that used codewords for prostitution (eg "roses" or "diamonds" as stand-ins for "dollars").

What do you think of the idea that providing a search function causes a site to lose §230 immunity? How would this affect Google?

Craigslist ads are generally free. However, they began charging in 2008 for adult-services ads, at least in part because payment would make it difficult or impossible for posters to remain anonymous (bitcoin notwithstanding). Overall, it seems Craigslist was not happy with these ads, but did not implement an "individual review" policy until 2011.

The CDA does include the following:

(3) State law
Nothing in this section shall be construed to prevent any State from enforcing any State law that is consistent with this section. No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.

The first sentence here suggests that the CDA is not intended to interfere with state laws against prostitution. The second, however, suggests that §230 protections are indeed intended to apply to online speech cases that may run afoul of state laws.

Prostitution is a violation of state law, of course, and Dart's complaint stated that Craigslist itself was "solicit[ing] for a prostitute", under the broader meaning of "soliciting". Craigslist, Dart claimed, was also "knowingly assisting" others in finding prostitutes, also against state law. The federal district court did not buy this argument. From the decision of Judge John Grady:

"Facilitating" and "assisting" encompass a broader range of conduct, so broad in fact that they include the services provided by intermediaries like phone companies, ISPs, and computer manufacturers. Intermediaries are not culpable for "aiding and abetting" their customers who misuse their services to commit unlawful acts. [p 14]

The court did however point to the fact that Craigslist specifically and repeatedly warned users not to post prostitution ads or other illegal ads. Should they have to include such warnings?

The court also made reference to Does v GTE, in which a previous court ruled

that it was inconsistent with the statue's apparent purpose to encourage monitoring ("Protection for 'good Samaritan' blocking and screening of offensive material") to read §230(c)(1) to immunize internet-serice providers who do nothing to monitor the content they make available to the public [emphasis added by pld; from Dart v Craigslist p 12]

What do you think of that potential §230 limitation: that to receive §230 protection you must do at least some content monitoring? If you don't, you can maybe fall back on the Cubby v Compuserve defense that you have only distributor liability. Should the "distributor" classification apply to a site like Craigslist if they did no monitoring?


Jones v The Dirty

The site thedirty.com publishes trashy information about people. The site is run by Hooman Karamian, known on the site as Nik Richie. The site actively encourages the submission of scandalous information, and Nik frequently comments on submitters' postings.

In 2009 the site included a post about Sarah Jones, then a cheerleader for the Cincinnati Bengals and a high-school teacher:

Nik, this is Sara J, Cincinnati Bengal[sic] Cheerleader. She's been spotted around town lately with the infamous Shayne Graham. She also has slept with every other Bengal Football player. This girl is a teacher too!

A couple months later another post appeared.

Jones sued for defamation of character. The district-court judge, William Bertelsman, denied a motion to dismiss the case on §230 grounds; in July 2013 a jury found in Jones' favor. Jury instruction #3 read

Defendants, when they re-publish the matters in evidence, had the same duties and liabilities for re-publishing libelous material as the author of such materials.

§230 be damned, in other words.

Just to prove once again that life is stranger than fiction, Jones pled guilty in October 2012 to a felony charge of sex with a student (in fact this may have delayed her libel case). Jones later became engaged to the student.

Bertelsman's argument against §230 immunity in his original decision was based on the following:
Recall the Roommates.com case mentioned above in which the website was an active participant in the racial profiling of tenants.

In 2009 the Tenth Circuit ruled, in Federal Trade Commission v Accusearch, that a site could not claim §230 immunity if it was "responsible for the development of the specific content that was the source of the alleged liability", and that the only way to escape this responsibility was to be completely "neutral with respect to the offensiveness of the content". In that case, Accusearch was in the business of selling private phone records. §230 immunity seemed a real stretch, but the Tenth Circuit's interpretation is very broad (much broader, for example, than the reasoning in roommates.com). See Vision Security v Xcentric below.

Mr Richie was far from neutral. The whole purpose of thedirty.com is to attract salacious gossip. Still, his editorial remarks did not generally claim that the stories posted were definitely true.

In June 2014 the Sixth Circuit issued its ruling, vacating Jones' victory and upholding §230:

Under the CDA, Richie and Dirty World were neither the creators nor the developers of the challenged defamatory content that was published on the website. Jones's tort claims are grounded on the statements of another content provider yet seek to impose liability on Dirty World and Richie as if they were the publishers or speakers of those statements. Section 230(c)(1) therefore bars Jones's claims.

Nik's comments, in other words, weren't enough for him to incur liability.


Cloudflare and Grooveshark

In April 2015 the music-file-sharing site Grooveshark was shut down due to record-company litigation; part of the settlement transferred ownership of the Grooveshark trademark to the record labels. A "clone" site, using the name grooveshark.io, popped up a few weeks later; the record labels again sued. This time they had only to show that grooveshark.io was violating trademark law in its use of the "grooveshark" name.

On May 13, 2015, District Court Judge Deborah Batts issued, under seal, an order that shut down the clone site.

Three weeks later, Judge Alison Nathan ruled that Judge Batt's order also required Cloudflare, the large content-delivery network, to police all the sites it provided its services for, to detect any misuse of the "Grooveshark" trademark and to take action to block such misuse. Commentators at the time drew an analogy between this order and SOPA/PIPA, which would have made domain-name seizures even easier and may also have required third parties to participate in enforcement. The order also made Cloudflare responsible for its customers' actions, which was an apparent conflict with §230 of the CDA.

Cloudflare objected strenuously, on §230 (and other) grounds, and asked that they be responsible only for policing infringing sites that were brought to their attention by the record-label plaintiffs. Judge Nathan eventually agreed, and modified her previous order. In principle, §230 means that Cloudflare doesn't have to cooperate at all, but they did not ask for that.

More at https://www.eff.org/deeplinks/2015/07/victory-cloudflare-against-sopa-court-order-internet-service-doesnt-have-police.


Doe v Model Mayhem

(The official case title is Jane Doe No. 14 v. Internet Brands, Inc., DBA Modelmayhem.com.) The plaintiff signed up for modeling contacts at Model Mayhem, and was sexually assaulted. She claims Model Mayhem should have some responsibility for the fact that the "agency" that contacted her through the site was a fake.

On the one hand, Model Mayhem argued it is completely covered by §230. On the other hand, they appear to have made no effort to warn prospective models that not all "modeling agencies" are legitimate, and may have in fact known that the perpetrator in Doe's case, Lavont Flanders, had assaulted other MM models.

In 2013 the District court ruled that §230 protects Model Mayhem. In 2014 the Ninth Circuit ruled that §230 did not apply. In 2015 they withdrew that opinion. In May 2016 the Ninth Circuit issued a new opinion, in which they assert that MM's "failure to warn" was not tied to their protection from user-posted content. They draw a distinction from Doe v Myspace, in which the assault was tied to Doe's postings. The actual case was remanded back to the District court for trial, partly on the issue of whether MM actually did have a duty to warn. 

If this ruling stands, it would mean Uber might not be able to claim §230 immunity for assaults by its drivers. Uber's business model is, superficially, to allow riders and drivers to contact one another (by posting on a site, in effect) to negotiate rides; taken literally, §230 might apply. Uber is, however, much more in charge of riders and, in particular, drivers than it sometimes admits.

The Ninth Circuit seemed unwilling to apply §230 broadly here. Do you think MM was guilty of inadequate screening? Or was there more going on? If MM is ultimately found liable, how will that affect other websites that allow user-posted content?

This "failure to warn" doctrine is the sort of thing that leads to multiple pages of rather useless warnings on many consumer products.


Hassell v Bird

Dawn Hassell is a San Francisco attorney who briefly represented Ava Bird. Hassell withdrew from Bird's case, because Hassell felt Bird wasn't cooperating. Someone later posted a very negative review of Hassell on Yelp.

Hassell sued Bird for defamation (apparently without proof that Bird was the author), and won by default as Bird simply did not show up.

But then things get interesting, from a §230 perspective. The state judge who was hearing the case issued an order requiring Yelp to remove the review, despite the general past interpretation of §230 that third parties have no responsibility to remove defamatory content.

In August 2016 a California appeals court agreed, despite vigorous opposition from Yelp. The court ruled that Yelp did not in fact even have standing to challenge the original order.

The apparent argument is that if a court finds a statement to be defamatory, then that statement does not have First Amendment protection. (Never mind that the First Amendment and §230 are rather different things. Never mind that there was never any finding that the statement was actually defamatory, as the defendant did not show up.)

The case is currently (2017) on appeal to the California Supreme Court.

See:

Post-Hassell Takedowns

Since then, there have been multiple instances of the following scenario:

The catch? The sued party named "Bob" has no relationship to the real Bob. I am not making this up. In several instances of this kind of "fake lawsuit", reputation-management companies have been implicated.

Suppose Bob posted his opinion of a restaurant, or an honest criticism of service he received somewhere. What speech protections is Bob entitled to?

Conversely, of course, suppose Alice wins a legitimate defamation lawsuit against Bob. Under §230 today, Charlie.com would have no obligation to remove the content. Is that fair to Alice?

In many cases, the target served with the takedown notice is not Charlie.com, but Google.com. Should Alice be able to have Bob's comments entirely de-indexed?

See www.washingtonpost.com/news/volokh-conspiracy/wp/2016/10/10/dozens-of-suspicious-court-cases-with-missing-defendants-aim-at-getting-web-pages-taken-down-or-deindexed.



Former Sony chairman Michael Lynton used a possibly legitimate process to have an unflattering Gawker article by Sam Biddle removed from the Gawker archives (though not from Google search itself). The article, based on emails released in the 2014 Sony hack, alleged that Lynton donated a significant sum of money to Brown University in the hopes of improving his daughter's chances of admission.

See washingtonpost.com/news/volokh-conspiracy/wp/2017/05/11/how-a-former-sony-chairman-de-indexed-an-article-based-on-his-sony-hack-e-mails for further information about what actually happened.

The Gawker link is here: gawker.com/how-the-rich-get-into-ivies-behind-the-scenes-of-elite-1699066450. But all it says is "Page Not Found".

If one tries to search for the article in the Wayback Machine, one gets this: web.archive.org/web/*/http://gawker.com/how-the-rich-get-into-ivies-behind-the-scenes-of-elite-1699066450. It says "Page cannot be displayed due to robots.txt".

Another article about the event, from the prestigious Chronicle of Higher Education, is here: chronicle.com/blogs/ticker/brown-gave-special-admissions-treatment-to-donors-daughter-hacked-emails-show/97599. This article includes a link to the now-deleted Gawker article. A Buzzfeed article is here: buzzfeed.com/stevenperlberg/a-sony-hack-story-has-been-quietly-deleted-from-gawker.



Uber and Airbnb

Yes, Uber lives on §230 protection too. Uber's position is that they are an online brokerage, at which drivers can bid to pick up passengers. Even if it's not real bidding in that Uber sets the rates. But Uber argues that drivers are independent contractors, and that §230 means Uber cannot be held liable for any action of a driver against a passenger or vice-versa.

This is why Uber fights so hard in those lawsuits claiming their drivers are really employees.

The online-brokerage argument fits Airbnb even better. Real estate owners, in theory, use Airbnb to post ads for their properties, much like they might on Craigslist. What responsibility should Airbnb have? Uber, at least, sets fairs and assigns a driver to a passenger.


Cohen et al v Facebook

The plaintiffs were survivors of attacks by Hamas; they sued Facebook on the legal theory that Facebook "supported terrorist organizations by allowing those groups and their members to use its social media platform to further their aims." In particular:

Facebook allows [Hamas], its members, and affiliated organizations to operate Facebook accounts in their own names, despite knowledge that many of them have been officially named as terrorists and sanctioned by various governments.

On May 18, 2017 the judge dismissed the case on §230 grounds: Facebook is not responsible for the content posted by terrorists.

Had the plaintiffs won, it is hard to see how any messaging or email service would emerge unscathed: a side effect of allowing communications is that sometimes people communicate evil things.

Note that we are quite a way aways from defamation here. Note also that, as there were 20,000 plaintiffs, Facebook's potential liability might have been huge.

More at blog.ericgoldman.org/archives/2017/05/facebook-defeats-lawsuit-over-material-support-for-terrorists-cohen-v-facebook.htm.




Revenge Sites

Section 230 immunity has led to the rise of so-called "revenge sites", sites that specialize in the posting of "revenge" information. One such site is ripoffreport.com, run by Xcentric. In litigation in 2011, Judge Cortiñas of the Florida appellate court stated

The business practices of Xcentric, as presented by the evidence before this Court, are appalling. Xcentric appears to pride itself on having created a forum for defamation. No checks are in place to ensure that only reliable information is publicized. Xcentric retains no general counsel to determine whether its users are availing themselves of its services for the purpose of tortious or illegal conduct. Even when, as here, a user regrets what she has posted and takes every effort to retract it, Xcentric refuses to allow it. Moreover, Xcentric insists in its brief that its policy is never to remove a post. It will not entertain any scenario in which, despite the clear damage that a defamatory or illegal post would continue to cause so long as it remains on the website, Xcentric would remove an offending post. [footnote omitted]

And yet the court upheld §230 protection for the site.

(Xcentric has lost other cases. One was Xcentric v Smith, in which the allegedly defamatory content was created by a poster named Meade who may have had a financial relationship with Xcentric. This is a preliminary decision. Another case was Vision Security v Xcentric, in which the district-court judge wrote

[A] service provider is not neutral if it “specifically encourages development of what is offensive about the content.” ... Xcentric argues that drawing all inferences in favor of Vision Security, it must be found to have been a neutral publisher. The facts as alleged, however, support a contrary conclusion.

The neutral-publisher rule comes from the Tenth Circuit Federal Trade Commission v Accusearch case, above. It also turned out that, despite ripoffreport's claim that they "never remove a post", they will do so for a significant fee.)

There are also issues with individuals bent on revenge. Canadian teacher Lee David Clayworth had a romantic relationship with Lee Ching Yan. After it ended, Yan posted negative information relentlessly about Clayworth, including nude pictures and allegations that he had slept with underage students. As a result, Clayworth has found it difficult to find a new job as a teacher.

However, if you google his name since ~2014, almost all the links Google supplies are to articles about his misfortune. (There was one link to liarscheatersrus.com). So in some sense publicizing his case has had the indirect effect of clearing his name.

Another example is Sue Scheff, who used Dozier Internet Law to sue Cory Bock for defamation and won an $11 million judgement. Ms Bock was unable to attend the trial, as at the time she was homeless in the aftermath of Hurricane Katrina. But Scheff's real success has been in using the Internet to rehabilitate her online image.


Revenge Porn

Recently there has been a rise in so-called "revenge porn" sites, at which one member of an ex-couple can post intimate pictures of the other. Should §230 protect such sites?

Barnes was a revenge-porn victim; the posts appeared on Yahoo under her name although they were in fact posted by Barnes' ex-boyfriend. A Yahoo "director of communications" agreed to arrange for the posts to be removed, in accordance with Yahoo's terms-of-service rule that disallowed posting under someone else's name, but they were not. Barnes eventually sued. In 2009, the Ninth Circuit ruled that §230 protected Yahoo, although they did eventually remove the posts. The Ninth Circuit did rule that Yahoo could be sued for breach of promise, as they'd promised to take down the posts and then did not (it is not clear why).

Here are two theories from a California Law Review article by Zak Franklin (http://www.californialawreview.org/wp-content/uploads/2014/12/05-Franklin.pdf).

This Comment rejects that conclusion and articulates two theories that might enable a plaintiff to persuade courts that many website operators are responsible for the harmful content on their sites, and therefore are liable as information content providers under Section 230. First, where an operator has added original material, a victim-plaintiff can argue that the revenge porn website operator contributed to the illegality of the post. Second, a plaintiff can argue that the operator is responsible for the content because the operator solicited it.

The first argument is reasonable, if the site operator did in fact contribute. The second is much harder, in light of the Jones v The Dirty decision.

One thing to bear in mind, however, is that the original poster of revenge porn is almost always readily identifiable. Criminalizing such posting can thus go a long way towards preventing it, even if the sites cannot be shut down.

California in 2013 criminalized the posting of nude images of someone without their consent, with the intent to cause distress. Where does that leave the following?
In the other direction, the California law only applies in "circumstances where the parties agree or understand that the image shall remain private". This opens up a host of possible arguments as to interpretation, especially if the image was recorded outdoors.

Oddly, the California law apparently excludes photos obtained by hacking.

In Illinois it is now a felony to post "sexually explicit videos or photos of another person, without their consent". It would also make it illegal to "host a website that requires victims to pay a fee to have the explicit photos removed". The former would appear to cover all the categories above. As for the latter, if the server or site operator were outside of Illinois, would Illinois have jurisdiction? If so, wouldn't the site simply refuse to remove the picture under any circumstances?

Note that if the image was a "selfie", the person pictured generally owns the copyright, and can request takedown under the DMCA. Alternatively, Alice and Bob can agree (preferably in writing) that Bob owns the copyright to any pictures taken by Alice of Bob in a state of déshabillé .

Generally, such laws require that the poster had "malicious intent". Paparazzi pictures generally do not fall into that category, but celebrities may latch on to any available tool to discourage paparazzi.



On June 19, 2015, Google introduced a new policy of taking down search links to revenge porn. The announcement is at http://googlepublicpolicy.blogspot.com/2015/06/revenge-porn-and-search.html. Google is not, of course, able to remove the "original" posts, but making images unsearchable is a big step.

Google notes that

This is a narrow and limited policy, similar to how we treat removal requests for other highly sensitive personal information, such as bank account numbers and signatures, that may surface in our search results.

One might categorize these as limiting search for data that has essentially no public-policy utility. It remains to be seen how Google treats paparazzi pictures of déshabillé celebrities, or pictures such as Anthony Weiner's infamous selfie. (As a side note, what category might describe Weiner's picture? Harassment, maybe, but that isn't the full story.)

See also http://www.slate.com/blogs/future_tense/2015/06/19/google_announces_plan_to_remove_revenge_porn_from_search_results.html

Note that Google's policy here is another step towards acknowledging at least some limited "right to be forgotten".



In May 2016, Kevin Bollaert was convicted and sentence to 18 years in prison (later reduced to 8 years) for running the now-down UGotPosted.com. The trial court largely ignored Bollaert's §230 defense, however; it is not clear if an appeal on this point is underway. See also https://www.techdirt.com/articles/20160507/01180534366/revenge-porn-creep-kevin-bollaerts-appeal-underway-actually-raises-some-important-issues.shtml.



The SAVE Act

The name stands for Stop Advertising Victims of Exploitation; it is not related to the Campus SaVE act. It was signed into law in 2015, and represents the first legal step away from blanket §230 immunity. It creates a criminal liability for websites that knowingly run prostitution advertisements for victims of "sex trafficking", generally meaning people forced into prostitution. This would make it much more difficult for sites like Craigslist to run sex ads, except those seem to have already ended. Its real goal may be the closure of backpage.com, which continues to run ads for "escorts". (In January 2017 Backpage finally did cave in to pressure and removed all content from its "adult" sections.)

Prevention of sex trafficking is unarguably an important goal, but one sometimes suspects that the "real" goal of some anti-trafficking laws is to crack down on prostitution itself. It appears that the vast majority of sex workers have chosen their occupation voluntarily; furthermore, online advertising is a much safer way for prostitutes to meet clients than streetwalking. It is hard to get accurate numbers on sex trafficking, but some numbers seem clearly inflated. Some people (mostly at the right edge of the political spectrum) regard all prostitution as inherently "forced"; this seems a bit of an overstatement. In 2016 Amnesty International adopted a policy advocating for decriminalization of prostitution. They took this position to make it easier to fight sex trafficking.

The San Francisco site myredbook.com was shut down in 2014. The article http://www.wired.com/2015/02/redbook/ has some anecdotes on this, but little data. Another article is http://www.rawstory.com/2014/07/fbi-seizure-of-my-red-book-website-spurs-san-francisco-bid-to-decriminalize-prostitution/, suggesting there is increasing sentiment to decriminalize prostitution in San Francisco.



§230 Future


§230 has been called "the law judges love to hate", and judges do indeed, despite years of precedent, routinely rule against §230 protection. So stay tuned to recent decisions. Eric Goldman blogs about most §230 cases at blog.ericgoldman.org. See also the EFF list at www.eff.org/issues/cda230.



Self-Censorship

While §230 gives sites like YouTube and FaceBook immunity for user-posted content, most mainstream sites implement a considerable degree of self-censorship, to avoid offending users. In the industry this is often referred to as "moderation" of the site. Banned content typically includes nudity, violence, hate speech, and often a variety of other offensive topics. Usually the details of a site's "acceptable-content" policy, however, are not spelled out.

A good article on this is http://www.theverge.com/2016/4/13/11387934/internet-moderator-history-youtube-facebook-reddit-censorship-free-speech.



Harassment

Do organizations and people who experience such online defamation and "cyberbullying" deserve some means of redress? Often Section 230 is not the issue; the idea would be to go back to the original poster.

Here is a list of a few of those who have committed suicide due to intense online harassment. There are many more.

Rebecca Sedwick Sept 9, 2013 Florida; Ask.fm and others; two other students arrested on felony charges
Jessica Laney Dec 11, 2012 Florida; Ask.fm
Ciara Pugsley Sept 29, 2012 Ireland; Ask.fm
Megan Meier          Oct 17, 2006 Lori Drew created fake account
Ryan Halligan Oct 7, 2003 Vermont

Rebecca Sedwick's mother moved her to a new school and closed her Facebook account. But she did not know about ask.fm, where Rebecca re-encountered her harassers.

To what extent should harassment online be illegal?

Should it be illegal to tell a middle-school student to "go drink bleach and die"? What about to your Congressional representative?


Criminal Libel

There is such a thing! From http://law.jrank.org/pages/1563/Libel-Criminal.html:

At common law, libel was recognized as a criminal misdemeanor as well as an individual injury justifying damages (a tort). Prosecutions of the offense had three goals: protection of government from seditious statements capable of weakening popular support and causing insurrection; reinforcement of public morals by requiring a "decent" mode of community discourse; and protection of the individual from writings likely to hold him up to hatred, contempt, or ridicule. The protection of the individual, a goal that is generally left to tort law, was justified by the criminal law's responsibility for outlawing statements likely to provoke breaches of peace.

It's hard to see how anything on the internet could result in an immediate breach of the peace, as compared, say, to leafleting at a protest march, or using a bullhorn to incite a crowd. Criminal libel prosecutions have been extremely rare for the past ~70 years. When they do occur, it usually represents either an overzealous police department or someone rich and powerful who doesn't want to bring a civil suit directly. Under criminal-libel laws, the government foots the bill for what arguably should be the plaintiff's position.

Criminal Libel is sometimes justified as (and sometimes limited to) a way of protecting the reputations of the dead; living people can sue.

Here is a 2003 example at the University of North Colorado involving a new satirical newsletter published by Thomas Mink:

To spice up the first issue, Mink doctored a photograph of well-known UNC finance professor Junius Peake so that he resembled Gene Simmons of KISS in full makeup. Mink described his digital creation as "Junius Puke," editor in chief of the publication.

(See http://webspace.webring.com/people/jt/thehowlingpig) (cached)

The police charged Mink, but the local prosecutor insisted that Mink "was in no danger of prosecution"; ie, his office would never have followed up on prosecuting the case. However, this was less clear to Mink, and the original arrest and equipment seizure was apparently solely for criminal libel. Mink's case was not dropped until he went before a federal judge in Colorado.

Colorado is apparently serious about this. From 2008:

FORT COLLINS, Colo. — A man (J.P. Weichel) accused of making unflattering online comments about his ex-lover and her attorney on Craigslist has been charged with two counts of criminal libel. ... Police obtained search warrants for records from Web sites including Craigslist before identifying Weichel as the suspect.

Note that a search warrant cannot be obtained in a civil suit!

The doctrine of criminal libel is severely at odds with free speech. Nonetheless, it may be on the rise, as states see it as the only way to rein in the runaway Internet libel released by §230.

Another libel legal theory is that of
group libel: you can be sued if you make defamatory remarks about a group of people (eg a racial/ethnic/religious group), without singling out any specific individual. The courts have over the years not been terribly receptive to this theory.



Google Conviction in Italy

On February 24, 2010, three executives of Google were convicted in Italy of violating criminal privacy laws; each received a six-month suspended sentence. At issue was Youtube's delay in removing a video in 2006 of four youths beating a boy with autism and/or Downs syndrome.

Google complied with a request from Italian police for removal of the video, but possibly was not so prompt in responding to earlier requests. Under Italian privacy law, videos cannot be posted online without the consent of all participants (Illinois has a similar law regarding audio recordings, though the Illinois law simply forbids the act of recording itself).

The Italian prosecutor's argument was that, through advertising revenue, google profited from the video, and thus was criminally responsible.

In the US, §230 of the CDA makes Google immune to civil prosecution in such cases; free-speech rights ensure Google would be immune to criminal prosecution.

The European Union has issued Directive 2000/31/EC, dated June 8, 2000 (http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32000L0031:EN:HTML), which was intended in part to limit ISP liability. See paragraph 40, for example. However, the directive is rambling and quite lengthy, and the fact that google profited from the Youtube video through advertising seems to have been interpreted by the Italian prosecutor as voiding ISP status. Note that prologue paragraph 40 states that one goal is the "development of rapid and reliable procedures for removing and disabling access to illegal information". The last phrase is quite striking in and of itself: what makes information intrinsically illegal? Prologue paragraph 42 states

The exemptions from liability established in this Directive cover only cases where the activity of the information society service provider is limited to the technical process of operating and giving access to a communication network over which information made available by third parties is transmitted or temporarily stored, for the sole purpose of making the transmission more efficient; this activity is of a mere technical, automatic and passive nature, which implies that the information society service provider has neither knowledge of nor control over the information which is transmitted or stored.

The relevant part of the actual directive is as follows:

Article 12

"Mere conduit"

1. Where an information society service is provided that consists of the transmission in a communication network of information provided by a recipient of the service, or the provision of access to a communication network, Member States shall ensure that the service provider is not liable for the information transmitted, on condition that the provider:

(a) does not initiate the transmission;

(b) does not select the receiver of the transmission; and

(c) does not select or modify the information contained in the transmission.


The New York Times has suggested that one issue was Italian prime minister Silvio Berlusconi's control of television and traditional media, which compete with the Internet. The case at hand, if upheld, could make YouTube unavailable in Italy.

In December 2012 an Italian appeals court overturned the three convictions. The state has not appealed further.

Finally, note that, by all accounts, YouTube has been very successful in filtering out nudity, even mild forms. They could probably figure out how to filter other things, if they really wanted to.

Resources:
How does this google/youtube problem differ from the problem faced by craigslist for unfair-housing and prostitution ads? Note that the only reason craigslist ran into trouble, rather than, say, ebay, was that the latter does not provide useful local listings (and is not free to listers).



Spam

See Baase 4e p 148 / 5e p 154

1996: AOL v Cyber Promotions
Note that CP initially 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. Hamidi's emails were about how Intel employees could better understand their employment rights.

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.



First-Person Libel

So far we have been looking at §230 and libel safeguards for sites that "quoted" someone else. What about sites such as those below where original negative information is posted? It might seem the only defense is if the negative information is truthful, and the targets are all large organizations with large legal budgets. All they have to do is find the site has a single piece of false negative information....

And yet no libel lawsuits have been filed. Why?

Libel and Internet complaints about corporations

A selected few "sucks" sites. Search for (large company name) + "sucks" to find more. These sites come and go quickly.
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
placeholder; I gave up on my 1990 Chrysler in 2015
ibmsucks.org
gone
microsoftsucks.org
user-posted content
applesucks.org
placeholder?
google-sucks.org
Active
googlesucks.info
???
paypalsucks.com
these folks are really ticked off!
bankofamericasucks.com
everything is user-contributed. 2017: apparently offline
whylinuxsucks.org
Completely gone, but was a serious site on linux improvement


How can "sucks" sites get away with criticizing major corporations? Because sometimes suing complainers just does not have the desired effect. More often than not, it draws more public attention to the alleged corporate misbehavior; see the Streisand effect.

The McLibel case

In the late 1980's, Dave Morris and Helen Steel participated with others in an organization known as London Greenpeace (unaffiliated with Greenpeace International) with handing out leaflets (remember those?) at local McDonalds stores. The leaflets made claims such as the following:

Note that their story had NOTHING to do with the internet! Though, today, the group most likely would have a website.

McDonalds had done a great deal of investigating; they had hired spies to infiltrate London Greenpeace to get names of members involved. This wasn't entirely coordinated; two spies spied on each other for an extended period. Another spy had a long romantic relationship with a real member.

In 1990, McDonalds sued everyone in the group for libel. Everyone folded except for Morris and Steel.

The case went on for two and a half years, the longest civil case in English history. Morris & Steel raised £35,000 for their defense, most of which apparently went to paying for transcripts.

Technically, Morris and Steel lost. Recall that in England the defense in a libel trial has to prove their claims are true; in the US the plaintiff must prove the claims false. From http://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.

As a practical matter, though, McDonalds was exposed throughout the case to over five years of increasingly bad -- make that dreadful -- press. Most ordinary people were offended that a huge corporation would try so hard to squelch criticism; the business community was none too supportive of McDonalds either. McDonalds' bungling spies didn't help any.

On appeal, the court agreed with Morris and Steel that McDonalds' food might be considered "unhealthy", but Morris and Steel had also claimed it was "carcinogenic". The judgement was reduced to £40,000

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 (because Morris and Steel were not provided with an attorney) and right to freedom of expression.

The bottom line for McDonalds, and for corporations generally, is that taking a critic to court for libel can be a very risky strategy. (There are still many individual libel lawsuits, but these are expensive.)


The phrase Libel Terrorism is 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)

This is vaguely related to McLibel-type sites, in that this is an attack on the "real" WTO (which was formerly the Generalized Agreement on Trade & Tariffs, or GATT). 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.



There are plenty of genuine libel lawsuits on the Internet. But Section 230 and the McLibel Effect seem to eliminate a good chunk of potential cases.



Threat Speech

With libel, the Ninth Circuit in the Batzel-v-Cremers case interpreted §230 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 long 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.

Planned Parenthood v American Coalition of Life Activists

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 early 1993 a "wanted" poster for Dr David Gunn, Florida, was released; on March 10, 1993 Dr Gunn was murdered. Also in 1993, a wanted poster for Dr George Patterson was released and on Aug 21, 1993 Dr Patterson was subsequently murdered, although there was never a claim that he was murdered for providing abortion services, and there was some evidence that his murder was part of a random altercation. Two days before, Dr George Tiller was shot and wounded in Kansas; Tiller was murdered in a later attack May 31, 2009. In 1994 a poster for Dr John Britton, Florida, was released; Dr Britton was later murdered, along with James Barrett, on July 29, 1994. Dr Hugh Short was shot November 10, 1995; he was not killed, but he could no longer perform surgery.

There was never any evidence that the ACLA itself participated in any of the assaults, or had any direct contact with those who did; there were plenty of individual antiabortion extremists who were apparently willing to carry these out on their own.

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"

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

Neal Horsley was an anti-abortion activist pretty much unaffiliated with ACLA. He maintained a website he called the "Nuremberg Files" site, with the nominal idea of listing names of abortion providers for the day when they might be tried for "crimes against humanity" (in genuine crimes-against-humanity cases, the defense "it was legal at the time" is not accepted). 

On Oct 23, 1998, Dr Bernard Slepian was killed at home. The day before, according to Horsley, his only intent was to maintain a list of providers; the day after, he added Dr Slepian's name with a strikethrough. Strikethroughs were also added to the names of Drs Gunn, Patterson and Britton. Dr Slepian's name had not been on Horsley's list at all before Slepian's murder, leading Horsley to protest vehemently that his site could not have been a threat against Slepian. The lawsuit, however, was filed by other physicians who felt it was a threat to them; Horsley is silent on this.

At the conclusion of the trial, the judge ordered (among other things) that Horsley not use the strikethrough any more.

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 District Court 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.

If you create a website, who should interpret your intent?

Horsley's original site was at christiangallery.com (no longer active).

Here is an archive of Horsleys' site with the original strikethrough: aborts2.html (Dr Gunn is column 2 row 8).

After the Ninth Circuit's ruling, Horsley replaced his list of names with a pro-abortion site's list of providers who had been injured or murdered; an abbreviated archive is at aborts.html. Lower down on his original version of this page, Horsley used strikethrough for names of women who had died as a result of receiving an abortion.

Horstley also created a separate page discussing the Ninth Circuit's ruling and a related California provider-privacy law, in an effort to explain his position. He reproduced part of his original list with strikethroughs. A portion of this page is archived at californicate.htm.

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; apparently Horsley himself was not added. By 1997, the internet was no longer new, but judges were still having difficulty figuring out what standards should apply. 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.

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, on the other hand, 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 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. 


District Court

The District Court 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).

The DC Judge wrote (full order at 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.

The law requires a higher level of scrutiny and proof for an injunction involving speech than for an award of damages for violation of a statute... I find the actions of the defendants in preparing, publishing and disseminating these true threats objectively and subjectively were not protected speech under the First Amendment.

Under current free-speech standards (for criminal law at least), you ARE allowed to threaten people. You ARE allowed to incite others to violence.

However, 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. Did the ACLA do either of these things? Does it matter that this was a civil, not criminal, case?


Ninth Circuit Three-Judge Panel

The case was appealed to a 9th Circuit 3-judge panel, which overturned the injunction. Judge Kosinski wrote the decision, based on NAACP v Claiborne Hardware, SCOTUS 1982.

NAACP v Claiborne Hardware summary: This was, like PP v ACLA, a civil case. The NAACP had organized a boycott in 1968 of several white-owned businesses, and had posted activists to take down names of black patrons; these names were then published and read at NAACP meetings. 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."

A local merchant association sued the NAACP for lost business. The Supreme Court found in the NAACP's favor, on the grounds that the boycott itself was protected speech under the First Amendment. Also, there was no evidence Evers had authorized any acts of violence, or even made any direct threats (eg to specific individuals); Evers' "speeches did not incite violence or specifically authorize the use of violence".

Judge Kozinski argued that whatever the ACLA was doing was less threatening than what Evers was doing, and therefore dismissed the case.

However, another feature of the Claiborne case was that, while there were several incidents of minor violence directed at those who were named as violators of the boycott, in fact nobody was seriously harmed. And, of course, the ACLA's "wanted" posters were indeed directed against specific individuals.

Furthermore, the merchants who brought the Claiborne case had experienced essentially no violence whatsoever; the Supreme Court found that the nonviolent elements of the boycott were protected speech. The plaintiff merchants had no standing to address the allegations of violence. Seen that way, the Claiborne case offers no precedent relevant to the ACLA case. Claiborne is not really about the right to make vague threats.


Full Ninth Circuit

The full Ninth Circuit then heard the case, en banc.

The ruling was by Judge Rymer, with 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 PPvACLA_9th_enbanc.pdf

5 pages of plaintiffs / defendants

Here is 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.

But more importantly, does the temporal sequence above of "first a poster, then a crime" constitute a "true threat"?

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 (appeals courts sometimes 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?

The text of the 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.

The decision cited the following Supreme Court cases:

Brandenburg v Ohio, criminal case, SCOTUS 1969: The First Amendment protects speech advocating violence, so long as the speech is not intended to produce "imminent lawless action" (a 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, criminal case, SCOTUS 1969.  Watts spoke at an anti-draft rally at 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 was given to NAACP v Claiborne, considered above. The crucial distinction: there was no actual violence then! The Supreme Court's decision was in effect that Evers' speeches did not incite illegal activity, and thus he could not be found liable for any 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.

Here is another important case cited as a precedent, also decided by the Ninth Circuit, in which a threat was ruled legitimate:

Albert Roy v United States, criminal case, Ninth Circuit, 1969: USMC private Roy heard that then-President Nixon was coming to the base, and said to a telephone operator "I hear the President is coming to the base. I am going to get him". Roy's conviction was upheld, despite his insistence that his statement had been a joke, and that he had promptly retracted it. This case was part of a move to a "reasonable person" test, eventually spelled out explicitly by the Ninth Circuit in its case United States v Orozco-Santillan, 1990:

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. On the one hand, this means no hiding behind "that's not really what we meant"; on the other hand, what if violence is not what you really meant? In Roy's case, part of the issue was that the threat was reasonable enough to frighten the telephone operator, and thus to affect the security preparations for the upcoming visit.

(All three of these last cases were criminal cases. In the 2015 Elonis case, below, the Supreme Court ruled that the "reasonable person" standard was not normally sufficient for criminal threat prosecution; this standard was for civil cases only. The PP v ACLA case was, of course a civil case.)



In the PP v ACLA decision, the Ninth Circuit wrote:

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.

The defendant must communicate it as a serious threat, that is, not just hyperbole.

In an amicus brief, the ACLU argued 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"? Or were the "wanted" posters more hyperbole?

Two dissents in the decision 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.

Here's the conclusion of Rymer's line of argument on 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, 4e p 173, Exercise 3.22 below(omitted from 5e); note that the "controversial appeals court decision" refers to the three-judge panel, reversed by the en banc decision.

3.22  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.



Traditionally, it has been the "conservative" position that all threats of violence are to be taken seriously, and that maintenance of good social order often trumps individual rights. Similarly, it is traditionally the "liberal" position that in some cases about threats there is a legitimate Free Speech issue, and that our rights may often trump maintenance of the status quo. Note, however, that some have identified the Ninth Circuit's ruling here as another "liberal" opinion.


Elonis

In June 2015, the Supreme Court ruled in Elonis v US that the conviction of Anthony Elonis for threats posted on Facebook against his ex-wife, his children and his co-workers was improper, due to flawed jury instructions.

Each of the Elonis threat posts did include a disclaimer referring to the First Amendment.

Elonis himself argued that he should only have been convicted if he intended to carry out the threats.

The Supreme Court ruled that, for criminal threat convictions, it was not enough that a "reasonable person" would understand the threats as genuine", which is what the jury was instructed.

Elonis's conviction was premised solely on how his posts would be viewed by a reasonable person, a standard feature of civil liability in tort law inconsistent with the conventional criminal conduct requirement of "awareness of some wrongdoing,"....

PP v ACLA, however, was a civil case, and the "reasonable person" standard remains applicable there.

The Elonis ruling might have changed the outcome of Roy v US (also a criminal case), but that case was 46 years earlier.

The Supreme Court added that they did not find Elonis to be a First-Amendment case:

Given the disposition here, it is unnecessary to consider any First Amendment issues.

The case also emphasized that criminal convictions should always require some element of criminal intent, or mens rea.


Hit Man

this was a book published by Paladin Press, written by "Rex Feral". There is a story circulating that the author is a woman who writes true-crime books for a living, but this seems speculative. It is likely not written by an actual hit man.

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, and this theory makes no sense under copyright law. However, the Utopian Anarchist Party promptly posted the entire book at overthrow.com, and Paladin, no longer able to profit from the book, was completely uninterested in takedown efforts. (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 were to those selling used copies of the physical book; in 2016 Google lists more online copies of the book and articles about its history with Paladin. 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 retired faculty member at Northwestern University, has a sideline of writing essays (and a book) 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 neo-Nazi materials he published in the United States, some of which were shipped to Germany. He served four years in prison. After his release he switched to mostly online activities; he has apparently not been arrested since.

In 1999, the Australian Fred Tobin was arrested while on a trip to Germany, for Holocaust-denial activity; at least some of this appears to have been carried out via a website Tobin maintained in Australia; he was later convicted and served seven months in prison.

In 2008 Germany attempted to extradite Tobin from Australia. This failed. He was later arrested at Heathrow Airport in England, while traveling; again, the German extradition claim failed as Holocaust denial is not a crime in the UK.

Tobin was convicted in Australia in April 2009 for violating a court order not to include anti-Semitic materials on his website, and served three months.

Finally, 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 Somm had absolutely no control over the material in question and in fact 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?

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. The US has arrested and tried foreigners for actions that were legal where they took place, notably Dmitry Sklyarov and David Carruthers.


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

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 (originally the LIgue Contre le Racisme et l'Antisémitisme; later the Ligue Internationale 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 was a civil case; no criminal charges against Yahoo executives were ever filed and no Yahoo execs were arrested while changing planes in France.

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.

The underlying theory here is that the worldwide scope of a website is not a given.

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 Ninth 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%.



Google vs Censorship

Google is the indexer (though not the publisher) of most of the world's information. As such, it is often the target of those who want some particular category of speech suppressed.

Google has multiple portals. US users are most familiar with google.com, but in Great Britain there is google.co.uk.; on June 15 2015 the latter had a Google Doodle celebrating 800 years since the signing of the Magna Carta but this did not appear for google.com users. In France there is www.google.fr (but, oddly, not google.fr). In Germany there is google.de; in China there is google.cn and in Iran there would be google.ir, but Google does not operate there.

Google has long respected local regulations in its country-specific portals. If one searches for "nazi" on google.com, the first link is to the American Nazi Party; links to several other pro-Nazi rants also appear in the first couple pages. On google.de, I could find only general-information links; the first three are to Wikipedia articles. The Chinese site, google.cn, censors extensive content.

Throughout the world, Google self-censors links to child pornography. Within the US, Google abides by DMCA takedown notices to remove links; Google also removes these links for the rest of its portals even though in theory the jurisdiction of the DMCA is limited to the US.

The European Union has recognized a right to be forgotten since at least 2006, meaning that personal records should not be publicly available indefinitely. In 2012 the European Commission introduced new regulations; based on these, Google introduced an option for individuals to request that links be deleted.

On May 13, 2014 the Court of Justice of the European Union (CJEU) sided with Mario Costeja González in his suit against Google. In 1998, a piece of property owned by Costeja was subject to forced sale for debt payment; this was reported in the Spanish newspaper La Vanguardia. In 2009, Costeja asked the paper to remove the article; they refused because the original listing was required by the Spanish government. Costeja then sued Google, in Europe, which agreed that the search engine should remove its links to the content in question. See http://www.theguardian.com/technology/2014/oct/21/right-to-be-forgotten-who-may-exercise-power-information.

At this point Google agreed to remove the content from google.es, and, eventually, from other EU-based portals, but left the material accessible via google.com.

Google also introduced changes to make access to google.com more difficult for Europeans. First, if you typed "google.com" in the address bar, an automatic redirect would take you to the local national portal for Google, eg google.es. There was a small link to the "real" google.com at the bottom of the page. Later, this link was removed for all but the original search page.

Still, many Europeans were not happy that their private history might still be easily available.

On June 12, 2015, the French Commission Nationale de l'informatique et des libertés (CNIL) ordered Google to take down all right-to-be-forgotten listings worldwide, that is, on all its portals including the US google.com. See http://www.cnil.fr/english/news-and-events/news/article/cnil-orders-google-to-apply-delisting-on-all-domain-names-of-the-search-engine/:

Although the company has granted some of the requests, delisting was only carried out on European extensions of the search engine and not when searches are made from "google.com" or other non-European extensions.

In accordance with the CJEU judgement, the CNIL considers that in order to be effective, delisting must be carried out on all extensions of the search engine and that the service provided by Google search constitutes a single processing.

Google was given fifteen days to respond.

One option is for Google to in fact delete the information, though that leads to slope that is less slippery than precipitous: every nation wants certain material censored.

In February 2016 Google implemented a mechanism to block the material to all European IP addresses, using geolocation. If someone from France went to google.com, they would not see the "deleted" information, but it would still be visible to users outside of Europe. French users could then use a VPN with a US termination point. The CNIL rejected this compromise in March 2016, and fined Google €100,000. They also held that, for liability purposes, the "Google search engine service represents a single processing operation and the different geographic extensions ('.fr', '.es', '.com', etc.) cannot be considered separate processing operations". Therefore, to the extent that CNIL has jurisdiction over google.fr, it also has jurisdiction over google.com.

Google appealed in May 2016. See their statement, in which they say "as a matter of both law and principle, we disagree with this demand".

Another avenue of compromise might be for Google to argue again that it is the responsibility of the original publisher to take down the material, especially when that publisher is within the EU, although the CJEU has already officially ruled that Google must remove the search entry.

One problem here is that privacy is a core right to Europeans while freedom of speech is a core right to those in the US. Another is whether France should have any jurisdiction over US websites (or over German, English or Venezuelan websites, for that matter).

Google, acting solely as a company located in California, cannot be forced by the Europeans to do anything; no US court would extradite Google employees or enforce a foreign judgement. However, Google conducts business throughout the world and they may choose not to endanger this. Google may not want to risk seizure of google.fr.

A few examples of requests to be forgotten can be found at http://www.theguardian.com/commentisfree/2014/jul/02/eu-right-to-be-forgotten-guardian-google.

What do you think of this "right to be forgotten"?


Equustek v Datalink

The Canadian firm Equustek sued the company Datalink Technologies Gateways over trademark infringement. As a result of the verdict, Google was asked to remove all links to DTG; in 2012 they did remove links visible through its Canadian portal google.ca. Google refused, however, to remove links from google.com. In June 2014 it lost its first-round case.

On June 11, 2015, a three-judge appellate panel from British Columbia ruled unanimously that Google must block the DTG links worldwide -- including, again, via google.com.

To be sure, it does appear DTG has behaved badly here, and in some ways this case resembles a DMCA takedown case, for which Google does remove links worldwide. However, the trademark case was limited to Canada; in general, intellectual-property cases may fare quite differently in different jurisdictions. Equustek has apparently not alleged that Datalink infringed on a patent, for example, meaning DTG should be able to sell their products freely as long as the trademark dispute is addressed.

Worse, the court's legal reasoning was not that DTG's behavior warranted worldwide takedown, but rather that worldwide takedown was the only reasonable option to make DTG disappear in Canada. The decision states that

The plaintiffs have established, in my view, that an order limited to the google.ca search site would not be effective. I am satisfied that there was a basis, here, for giving the injunction worldwide effect.

The court did not completely ignore the free-speech question, but interpreted it very narrowly, as pertaining to DTG's speech rather than Google's:

There has, in the course of argument, been some reference to the possibility that the defendants (or others) might wish to use their websites for legitimate free speech, rather than for unlawfully marketing the GW1000 [the infringing device -- pld]. That possibility, it seems to me, is entirely speculative. There is no evidence that the websites in question have ever been used for lawful purposes....

The full decision is at https://s3.amazonaws.com/s3.documentcloud.org/documents/2096794/2015-bcca-265-equustek-solutions-inc-v-google-1.txt and https://www.eff.org/files/2015/06/12/equustek_v._google_-_appeal_decision.pdf.

The case is currently on appeal to the Supreme Court of Canada. A decision is expected in summer 2017.



Illinois Eavesdropping Law

Should you be able to record the police in Illinois in public? Illinois law used to make this illegal (actually, 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 Massachusetts, 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."

Still, on May 10, 2012, the Seventh Circuit issued an order banning prosecution under the law in Cook County, and sent the case itself back to the District Court. Judge Posner dissented. One of the points of his dissent was that the Seventh Circuit's objections to the law were so broad that nothing would forbid a third party from making an audio recording of an arrest or other police interaction.

In September 2011, Crawford County judge David Frankland found the Illinois law unconstitutional, for violating due process and criminalizing ordinary behavior. On March 2, 2012, Cook County Circuit Court judge Stanley Sacks also ruled that the law was unconstitutional, though again apparently not because of the First Amendment. A later attempt to repeal the law failed in the Illinois house.

In March 2014 the Illinois Supreme Court ruled that the law was unconstitutional because it was "overbroad" and because of the First-Amendment issue. From the decision:

We conclude ... that the ... eavesdropping statute burdens substantially more speech than is necessary to serve a legitimate state interest in protecting conversational privacy. Thus, it does not survive immediate scrutiny. We hold that the recording provision is unconstitutional on its face because a substantial number of its applications violate the first amendment.

In December 2014 Illinois passed a revised law that criminalized recording without consent when the parties had a legitimate expectation of 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. See below on the Citizens United decision.

In June 2014, Carla Gericke reached a $57,000 settlement against the Weare, NH police department. Gericke had videoed a police arrest of someone else, was ordered at the time to stop, refused, and was arrested. She was released the following day. More at http://arstechnica.com/tech-policy/2014/06/woman-charged-with-wiretapping-for-filming-cops-wins-57000-payout/.



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.

The Supreme Court's 2010 ruling in Citizens United v Federal Election Commission was widely reported as deciding "corporations are people too". Actually, the ruling merely extends free-speech rights to groups of people (that is, corporations). The ruling also, however, made it clear that there was no basis for singling out  "media corporations" for first-amendment protection (versus other corporations). In the present circumstance, that would suggest that there is no way to distinguish between public recording (or shielding of sources) by "the press" and public recording or shielding by individuals; given that the former is incontrovertibly protected, perhaps the latter is as well.

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


Corporate Cybersmear

Here is the essential problem:

This is a significant issue in the "free speech" of employees. Note how giving providers an easy way to get libel cases dismissed via summary judgement makes this strategy for corporations much more difficult.

Supposedly Apple employees are fired if they write about Apple online anywhere.

In 2004, some bloggers announced new Apple rumors. In this case, apparently the rumors were accurate, and involved inside information from Apple employees. Apple sued, in the case Apple v Does, for the identities of the insiders. Apple argued in court that bloggers were not covered by the California shield law, and that even if they were they must still divulge the identities of their contacts. The trial court ruled in Apple's favor in 2005; the California Court of Appeals reversed in 2006. From the 2006 decision:

... the discovery process is intended as a device to facilitate adjudication, not as an end in itself. To accept Apple's position on the present point would empower betrayed employers to clothe themselves with the subpoena power merely by suing fictitious defendants, and then to use that power solely to identify treacherous employees for purposes of discipline, all without any intent of pursuing the underlying case to judgment.... Our sympathy for employers in such a position cannot blind us to the gross impropriety of using the courts and their powers of compulsory process as a tool and adjunct of an employer's personnel department.

See http://www.chillingeffects.org/johndoe/faq.cgi

Note that the issue here is the use of the legal system to find identities of anonymous posters. Baase has an entire section on anonymity (4e §3.4 / 5e §3.5).

What about employee bloggers?

We do have the case of Dawnmarie Souza who was fired from American Medical Response of Connecticut in 2009 after commenting on Facebook about her work environment. The NLRB, however, weighed in (much later, Feb 11 2011) with a ruling (non-final because the case was settled, but putting heavy pressure on employers) that Souza's speech was "concerted protected activity" under NLRA (National Labor Relations Act) rules for discussion of work conditions with other employees. Souza was discussing conditions on a private Facebook page, and had friended at least some coworkers, and was not blogging publicly. AMR's work rules apparently prohibited any discussion of work conditions on the internet.

http://philadelphiaemploymentlawnews.com/2011/02/amr-settles-dawnmarie-souzas-wrongful-termination-lawsuit.html

http://brodyandassociates.com/nlrb-breathes-new-life-into-federal-labor-law-are-you-ready

Souza was unionized, but the NLRA applies to nonunionized workers as well. However, the exact scope of the recent NLRB opinion is unclear.




Is source code speech?

Well, is it? On the one hand it is an expressive medium; on the other, source code has a functional quality absent from political rants. You can compile it and it does something.

Cases where it's been debated:

Encryption

Encryption was a BIG issue for the US government, 1977 - ~ 2000

For a while, the NSA (National Security Agency) tried very hard to block even publication of scientific papers. They would issue "secrecy orders".

But eventually the government's weapon of choice was ITAR: International Trade in Armaments Regulations

Suppose you make F-16 fighters. You need a munitions export permit to sell these oversees. What about if you make open-source encryption software? You need the same kind of permit! Even if you GIVE IT AWAY!!

BOOKS were exempt. The rule applied only to machine-readable forms. For a while, there was a machine-readable T-shirt with the RSA encryption algorithm on it.

Discussion: does it make any sense to ban the online source code, if a book in which the same code is printed can be freely distributed?

Zimmermann case

Phil Zimmermann released PGP ("Pretty Good Privacy") as an open-source project in 1991. The government made him promise not to do it again. Zimmermann's associates outside the US released the next version. Zimmermann was under indictment for three years, but charges were eventually dropped.

PGP later became a commercial software company, but not before aiding in the creation of the OpenPGP standard (and allowing that use of the PGP name). The open-source version is now GPG (Gnu Privacy Guard).


Schneier case

In 1994 Bruce Schneier wrote a textbook Applied Cryptography. All the algorithms were printed, and also included verbatim on a 3.5" floppy disk in the back of the book. Phil Karn (of Karn's Algorithm for estimating packet RTT times) applied for an export license for the package, also in 1994. It was granted for the book (actually, the book needed no license), but denied for the floppy.

Discussion: does this make sense?

Some of Karn's notes are at http://www.ka9q.net/export.


Bernstein case

Daniel Bernstein created a cipher called "snuffle". In 1995, while a graduate student at UC Berkeley, he sued to be allowed to publish his paper on snuffle and to post it to the internet. In 1997 the district court ruled in his favor. In 1999 a 3-judge panel of the 9th circuit ruled in his favor, although more narrowly. Opinion of Judge Betty Fletcher:

http://epic.org/crypto/export_controls/bernstein_decision_9_cir.html

Prior-restraint was one issue
Bernstein's right to speak is the issue, not foreigners' right to hear

But does source code qualify? see p 4232: C for-loop;  4233: LISP

Snuffle was also intended, in part, as political expression. Bernstein discovered that the ITAR regulations controlled encryption exports, but not one-way hash functions such as MD5 and SHA-1. Because he believed that an encryption system could easily be fashioned from any of a number of publicly-available one-way hash functions, he viewed the distinction made by the ITAR regulations as absurd. To illustrate his point, Bernstein developed Snuffle, which is an encryption system built around a one-way hash function. (Arguably, that would now make Snuffle political speech, generally subject to the fewest restrictions!)

Here is Judge Fletcher's main point:

Thus, cryptographers use source code to express their scientific ideas in much the same way that mathematicians use equations or economists use graphs. Of course, both mathematical equations and graphs are used in other fields for many purposes, not all of which are expressive. But mathematicians and economists have adopted these modes of expression in order to facilitate the precise and rigorous expression of complex scientific ideas.13 Similarly, the undisputed record here makes it clear that cryptographers utilize source code in the same fashion.

Government argument: ok, source code might be expressive, but you can also run it and then it does something: it has "direct functionality"

Fletcher: source code is meant, in part, for reading. More importantly, the idea that it can be banned due to its "direct functionality" is a problem: what if a computer could be ordered to do something with spoken commands? Would that make speech subject to restraint? In some sense absolutely yes; if speech became action then it would be, well, actionable (that is, something that could be legally prohibited).

In 1999, the full 9th Circuit agreed to hear the case; it was widely expected to make it to the Supreme Court.

But it did not. The government dropped the case.

The government also changed the ITAR rules regarding cryptography. Despite these changes, Bernstein continued to appeal. In 2003 a judge dismissed the case until such time as the government made a "concrete threat".


Junger v Daley

Peter Junger was prof at Case Western Reserve University. He wanted to teach a crypto course, with foreign students.

6th circuit:

The issue of whether or not the First Amendment protects encryption source code is a difficult one because source code has both an expressive feature and a functional feature.

The district court concluded that the functional characteristics of source code overshadow its simultaneously expressive nature. The fact that a medium of expression has a functional capacity should not preclude constitutional protection.

Because computer source code is an expressive means for the exchange of information and ideas about computer programming, we hold that it is protected by the First Amendment.

BUT: there's still a recognition of the need for balancing:

We recognize that national security interests can outweigh the interests of protected speech and require the regulation of speech. In the present case, the record does not resolve whether ... national security interests should overrule the interests in allowing the free exchange of encryption source code.


Apple and the FBI

The FBI wanted Apple to prepare a special version of iOS to enable brute-force guessing of the iPhone passcode. Normally, trying all 4-digit or even 6-digit combinations would be very fast, but the existing iOS software introduces an artificial delay of up to 1 hour.

One of Apple's more promising arguments has to do with free speech: the FBI is asking Apple first to write some code, and then sign that code, giving it the imprimatur of Apple approval. But longstanding free-speech law states that the government cannot force you to say a particular thing, and certainly cannot force you to put your name on it. You have, in other words, the right not to speak.

And, as was made reasonably clear by the Bernstein and Junger cases, source code is a form of speech.

Apple's primary argument was that the so-called "All Writs" act, requiring third parties to cooperate with federal requests for data access, was being misapplied here. Note, for example, that the FBI was asking Apple to produce a special version of iOS. That's a major undertaking, and not in the same class at all as asking them to provide access to someone's iCloud files (which Apple does do).

See


Restrictions on Circumvention Speech

The DMCA also has a speech restriction:

(1) No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that— (A) is primarily designed or produced for the purpose of circumventing protection afforded by a technological [copy-protection measure]

If you write an online or print article about how to bypass copy-protection, you may be violating this.

DeCSS case

There are several; the best known is Universal Studios v Reimerdes, Corley, and Kazan. Eric Corley, aka Emmanuel Goldstein, is the publisher of 2600 magazine. In 2000 the magazine included an article about a new program, "deCSS", that removed the CSS ("content-scrambling system") encryption from DVDs, thus allowing them to be copied to hard disks, converted to new formats, and played on linux systems.

Eric Corley 2011

Eric Corley

DeCSS was developed in ~1999, supposedly by Jon Lech Johansen. He wrote it with others; it was released in 1999 when Johansen was ~16. He was tried in Norway in 2002, and was acquitted.

Cute story about Jon: In 2005, supposedly Sony stole some of his GPL-covered code for their XCP "rootkit" project. Jon might have been able to sue for huge damages (though the usual RIAA-lawsuit standard is based on statutory damages per item copied, and here Sony might argue only one thing was copied). More at http://news.slashdot.org/story/05/11/17/1350209/dvd-jons-code-in-sony-rootkit

Jon Lech Johansen

Jon Lech Johanson


Judge Kaplan memorandum, Feb 2000, in Universal v Reimerdes:

As a preliminary matter, it is far from clear that DeCSS is speech protected by the First Amendment. In material respects, it is merely a set of instructions that controls computers.

He then goes on to consider the "balancing" approach between free speech and regulation, considering the rationale for the regulation and the relative weights of each side.

The computer code at issue in this case does little to serve these goals [of expressiveness]. Although this Court has assumed that DeCSS has at least some expressive content, the expressive aspect appears to be minimal when compared to its functional component. Computer code primarily is a set of instructions which, when read by the computer, cause it to function in a particular way, in this case, to render intelligible a data file on a DVD. It arguably "is best treated as a virtual machine . . . ."

[the decision cites Lemley & Volokh, Freedom of Speech and Injunctions in Intellectual Property Cases, Duke Law Journal 1998. However, the sentence in Lemley and Volokh's paper explicitly refers to executable object code, not source! "The Bernstein court's conclusion, even if upheld, probably doesn't extend past source code to object code, however. We think most executable software is best treated as a virtual machine rather than as protected expression." Judge Kaplan apparently did not grasp the distinction, though, to be fair, the above quote appeared only in the initial memorandum, and not in the final decision.]

Note that this virtual-machine argument renders irrelevant the Bernstein precedent! Actually, the virtual-machine argument pretty much presupposes that you have come down solidly on the side of code-as-function instead of code-as-expression.

Also note the weighing of expression versus functionality, with the former found wanting.

As for the free-speech issue, the final decision contains the following language:

It cannot seriously be argued that any form of computer code may be regulated without reference to First Amendment doctrine. The path from idea to human language to source code to object code is a continuum.

The "principal inquiry in determining content neutrality ... is whether the government has adopted a regulation of speech because of [agreement or] disagreement with the message it conveys." The computer code at issue in this case, however, does more than express the programmers' concepts. It does more, in other words, than convey a message. DeCSS, like any other computer program, is a series of instructions that causes a computer to perform a particular sequence of tasks which, in the aggregate, decrypt CSS-protected files. Thus, it has a distinctly functional, non-speech aspect in addition to reflecting the thoughts of the programmers.

What do you think of this idea that the DMCA is "non-content-based" regulation? What would you say if someone claimed deCSS was intended to express the view that copyright was an unenforceable doctrine?

Do you think that Judge Kaplan was stricter here than in the crypto cases because crypto was seen as more "legitimate", and deCSS was clearly intended to bypass anticircumvention measures?

The district court issued a preliminary injunction banning 2600.com from hosting deCSS; the site then simply included links to other sites carrying it. The final injunction also banned linking to such sites. Furthermore, the decision included language that equated linking with anti-circumvention trafficking.




Universal v Reimerdes, Appellate Court

The Appellate decision was similar to Judge Kaplan's District Court opinion, though with somewhat more on the constitutional issues, and an additional twist on linking. Also, note that one of Corley's defenses was that he was a journalist, and

Writing about DeCSS without including the DeCSS code would have been, to Corley, "analogous to printing a story about a picture and not printing the picture."

However, in full context, that idea was harder to support. Corley's mistake was in describing DeCSS as a way to get free movies. What if he had stuck to the just-the-facts approach, and described exactly how easy it was to copy DVDs without actually urging you to do it? Is this similar to the theoretical "Grokster" workaround?

Both the DC and Appellate courts held that the DMCA targets only the "functional component" of computer speech.

One argument was that the CSS encryption makes Fair Use impossible, and that therefore the relevant section of the DMCA should be struck down. The appellate court, however, ruled instead that "Subsection 1201(c)(1) ensures that the DMCA is not read to prohibit the 'fair use' of information just because that information was obtained in a manner made illegal by the DMCA". Subsection 1201(c)(1) reads

(c) Other Rights, Etc., Not Affected. — (1) Nothing in this section shall affect rights, remedies, limitations, or defenses to copyright infringement, including fair use, under this title.

In other words, while the DMCA can make Fair Use impossible, it remains an affirmative defense against charges of infringement. This is an interesting argument by the court! Literally it is correct, but the practical problems with Fair Use access go unaddressed.

There is also, though, another issue: Corley was not being charged with infringement. Literally speaking, Fair Use is not an affirmative defense against charges of violating the DMCA anticircumvention issue.

Some notes on the free-speech argument:

Communication does not lose constitutional protection as "speech" simply because it is expressed in the language of computer code. Mathematical formulae and musical scores are written in "code," i.e., symbolic notations not comprehensible to the uninitiated, and yet both are covered by the First Amendment.

The court also acknowledged Junger v Daley (above).

However:

As the District Court recognized, the scope of protection for speech generally depends on whether the restriction is imposed because of the content of the speech. Content-based restrictions are permissible only if they serve compelling state interests and do so by the least restrictive means available.

A content-neutral restriction is permissible if it serves a substantial governmental interest, the interest is unrelated to the suppression of free expression, and the regulation is narrowly tailored, which "in this context requires . . . that the means chosen do not 'burden substantially more speech than is necessary to further the government's legitimate interests.'"

That is, the DeCSS code may be said to be "expressive speech", but it is not being banned because of what it expresses.

The Appellants vigorously reject the idea that computer code can be regulated according to any different standard than that applicable to pure speech, i.e., speech that lacks a nonspeech component. Although recognizing that code is a series of instructions to a computer, they argue that code is no different, for First Amendment purposes, than blueprints that instruct an engineer or recipes that instruct a cook. See Supplemental Brief for Appellants at 2, 3. We disagree. Unlike a blueprint or a recipe, which cannot yield any functional result without human comprehension of its content, human decision-making, and human action, computer code can instantly cause a computer to accomplish tasks.... These realities of what code is and what its normal functions are require a First Amendment analysis that treats code as combining nonspeech and speech elements, i.e., functional and expressive elements.

As for hyperlinks (in the section "Linking"),

a hyperlink has both a speech and a nonspeech component. It conveys information, the Internet address of the linked web page, and has the functional capacity to bring the content of the linked web page to the user's computer screen.... The linking prohibition is justified solely by the functional capability of the hyperlink.

What if one simply printed the site name, without the link: eg cs.luc.edu? For links, one can argue that the expressive and functional elements -- what the other site is, and how to get there -- are inseparable.

The non-linking rule may become more of an issue as time goes on and the US attempts to remove from the DNS system sites which provide illegal access to copyrighted material. In the future, identifying a new IP address for, say, the now-seized megaupload.com may be suspicious.



Ironically, nobody uses deCSS any more. You can get the same effect with Videolan's VLC player, originally offered as a Linux DVD player but now also popular for Windows and Macs.

Furthermore, as of Windows 8, Microsoft will no longer supply a free DVD player with windows. So VLC is it.

How did this come about? MS, after all, introduced protected processes into Windows 7, under pressure from the media industry, specifically to prevent attaching debuggers to read things like embedded CSS decryption keys.

The MS issue turns out to be the MPEG-2 patent-licensing fee. It's $2.00 per device, according to http://www.mpegla.com/main/programs/M2/Pages/Agreement.aspx:

(1) For MPEG-2 Decoding Products in hardware or software (such as those found in set-top boxes, DVD players and computers equipped with MPEG-2 decode units), the royalty is US $2.50 from January 1, 2002 and $4.00/unit before January 1, 2002 (Sections 2.1 and 3.1.1), but $2.00 under the new extended License from the later of January 1, 2010 or execution date.

Videolan is based in France. They state on their legal page (http://www.videolan.org/legal.html):


Neither French law nor European conventions recognize software as patentable (see French section below).
Therefore, software patents licenses do not apply on VideoLAN software.

MS doesn't want to add $2.00 per license just for a DVD player, especially as this would then have to be paid for by business users who really do not need that.

But what about deCSS? This has evolved into libdvdcss.lib. There is no patent issue here, apparently, but the DMCA anti-circumvention rules theoretically criminalize its distribution. The Videolan site states

libdvdcss is a library that can find and guess keys from a DVD in order to decrypt it.
This method is authorized by a French law decision CE 10e et 9e sous­sect., 16 juillet 2008, n° 301843 on interoperability.

Vive la France!


Gallery of DeCSS: http://www.cs.cmu.edu/~dst/DeCSS/Gallery
Check out these in particular:

Does the entire gallery serve to establish an expressive purpose?

Lower down appears some correspondence between Touretzky and the MPAA.

At the beginning, in the third paragraph, Touretzky states that the purpose of the page is to "point out the absurdity of Judge Kaplan's position that source code can be legally differentiated from other forms of written expression". Is Judge Kaplan's position absurd?

One argument is that computer scientists do use source code as expressive speech, but mostly in fragments. That is, a textbook on encryption would need to include only a few crucial routines, and then perhaps only in pseudocode form. Code is functional, by comparison, only when it's the entire thing, complete with error checking and Makefile. By this standard, the mostly-fragmentary Touretzky gallery examples are indeed expressive, but not really functional.

Richard Stallman has argued, convincingly, that programmers do sometimes read entire code libraries as expressive speech. Or at least that he himself does. But he is an exceptional case.

A more widespread problem with the "expressive fragments" idea is that Alice could publish just the deCSS algorithm, as a function, and Bob could publish a general framework for processing video files. Alice's code meets the "expressive fragment" test, as it is not functional by itself, and Bob's code is not controversial at all. But paste the two together, and start watching DVDs.


What keys can I tell you to press?

In 2005 Sony introduced their "XCP" copy-protection system for CDs, developed by SunnComm. If you inserted a protected audio CD into a Windows computer, a small digital filesystem would mount and install a driver that was supposed to block copying the music tracks. The system used the Windows "auto-run" feature to achieve this without user involvement. Auto-run was always a security risk, and should be (and now I believe is) disabled on CDs and DVDs. It can also be disabled on a per-mount basis by holding down the "shift" key while inserting the media.

In 2003, John "Alex" Halderman, a student at Princeton of Edward Felten, discovered an earlier version of this software on a BMG release by Velvet Underground. His paper, dated Oct 6, 2003, is here. He writes

most users who would be affected can bypass the system entirely by holding the shift key every time they insert the CD.

Supposedly Halderman said something like, "they can't sue me for telling people to hold down the shift key, can they?"

Three days after the release of his paper, SunnComm did indeed file suit against Halderman; they also sued him for damaging the company's reputation. The following month, though, a federal judge dismissed the suit.

Did Halderman "offer to the public ... any technology ... that— (A) is primarily ... for the purpose of circumventing [copy] protection"? Does telling someone how to circumvent copy protection count? What about telling someone how to use standard software to accomplish this? What about providing open-source software to do this? What about for-sale software, sold only outside the US?




Firearms

While it's not exactly source code in the sense of a human-readable programming language, you can now get 3D-printer files to produce a handgun. The plans were developed by Cody Wilson, who named the gun the Liberator. Such files might certainly be in XML format, making them "sort of" human-readable. These files in effect represent a "program" for producing the gun.

The US government has demanded that the files be taken down from the defcad.com site (owned by Defense Distributed) that originally hosted them, under the same ITAR regulations that were formerly applied to encryption software. But the files are still widely available.

In May 2015, Defense Distributed filed a lawsuit against the State Department, arguing that their First Amendment rights were violated by the ITAR takedown order.

The Liberator is made of plastic. As such, there is a distinct possibility of catastrophic failure. Wilson has another gun-making project called ghost gunner. It involves a $1200 CNC milling machine that can complete the manufacture of an AR-15 rifle (the military version, with full-automatic operation, is known as the M-16).

The US Government has designated the lower receiver as the central part of the AR-15 rifle: all other AR-15 parts can be purchased without serial numbers and without identification or permit. The lower receiver, in turn, isn't considered an "official" AR-15 lower receiver unless it is more than 80% completed. The ghost-gunner project involves buying the CNC milling machine, a so-called "80% lower receiver", that is, 80% finished, and the other necessary parts for an AR-15. One then uses the milling machine to complete the lower receiver, and then assembles everything.

The lower receiver can also be 3D-printed. As the barrel, where the actual firing takes place, is steel, a polymer lower-receiver is not a safety hazard. See https://www.ar15s.com/wp-content/uploads/2014/10/Tungsten-Silver-80-AR-15-Lower-Receiver2-1024x637.jpg.

Is this still speech?