9.0 Chapter 9: Laws and Norms

In the spring of 2008, the popular blog BoingBoing lampooned some terms of service that a company called MagicJack had imposed on users of its Internet telephone service, as well as a misleading visitor-counter on its website. Discussing the terms of service, BoingBoing’s Rob Beschizza explained (among other things) that users had to agree that the company could analyze their calling patterns to send them targeted advertising, and that it could force customers to arbitrate any disputes in Florida.

MagicJack sued, claiming the posting had caused irreparable harm to its reputation. BoingBoing, an ad-supported business that’s insured against defamation claims, was not intimidated and fought back. In 2010, a California court ruled that MagicJack had no case because what Beschizza had written was a reasonable portrayal of what MagicJack itself had published in its terms of service and on its website. The judge also ordered the company to pay a big portion of BoingBoing’s legal fees.

Several of BoingBoing’s contributors are friends of mine, and I was overjoyed to hear that they’d successfully fended off a company that was trying to use the courts to shut down protected free speech. The case highlighted the importance of a robust marketplace for ideas. But the bloggers’ victory was also a reminder that some risks accompany the exercise of our First Amendment rights.

While the BoingBoing case was moving through the courts, America’s media-critic-in-chief, President Barack Obama, cautioned a group of 14- and 15-year-olds to be careful about what they posted online. His advice was prompted, during a Virginia school visit, by a query from a student who’d announced his intention to become president some day. According to the White House’s transcript, the current president offered, in the first of what he called “practical tips” for ambitious young people, this suggestion:

I want everybody here to be careful about what you post on Facebook—because in the YouTube age, whatever you do, it will be pulled up again later somewhere in your life. And when you’re young, you make mistakes and you do some stupid stuff. And I’ve been hearing a lot about young people who, you know, they’re posting stuff on Facebook, and then suddenly they go apply for a job and somebody has done a search and, so that’s some practical political advice for you right there.

Obama’s advice was conventional wisdom, and was undoubtedly correct in today’s world. I hope he’s wrong in tomorrow’s.

The BoingBoing case and Obama’s cautions, which I’ll discuss in more detail later, combine all sorts of issues that we need to consider in a democratized media world: law, social customs and more. How we behave online has ramifications.

Let me reassure you: If you’ve taken to heart the principles I’ve outlined in earlier chapters, you can much more easily minimize whatever risks there may be in your own participation online. How? Be honorable. It’s that simple.

That said, we can’t reduce risk to zero, partly because the legal system invites abuses from people whose goal is to shut down speech they don’t like. Meanwhile, the system is evolving to adapt to new challenges.

Laws increasingly determine how we can use online resources as active consumers. This starts with whether we can find the resources at all. Many governments take great pains to block what they see as dangerous (usually for them) or immoral material. According to the OpenNet Initiative, a project that documents Internet filtering and surveillance, a number of countries actively censor what their residents can readily see. Along with controlling what we get to see, both governments and private entities track our every move via digital surveillance.[1]

Some laws and regulations, especially in the copyright arena, give enormous power to large enterprises that make decisions about our Internet use. Others apply to everything from our comments on other people’s sites to the material we publish on our own, as the BoingBoing example and others in this chapter will show.

Again, I don’t want to scare you here. The odds that you will get in unjust legal trouble are slim. But as you’ll see in the pages ahead, forewarned is forearmed; it’s better to know about something ahead of time so you can prepare, however remote the possibility may be that you’ll be affected.

Laws are only part of the issue, as Obama’s cautions demonstrated. We also need to adjust some attitudes and learn some new skills—individually and as a society—in order to keep up with the collaborative communications tools that not only empower us in such amazing ways, but also can cause difficulties if we’re not fully aware of what we’re doing.

These attitudes and skills are about what sociologists call norms—principles of behavior that, according to Webster’s definition, “guide, control, or regulate proper and acceptable behavior.” When I use the word here, I’m talking about societal acceptance, about generally agreed ways to behave. In Japan, for example, it’s a norm to take off your shoes when you enter someone’s home, and bow when greeting someone; in America we tend to keep our shoes on and shake hands. I’m emphatically not talking about laws and regulations, which are enforced by governments; norms are enforced, if that’s the right word, but by you and me.

The principles outlined in Chapters 2 and 5, which undergird this entire project, are fundamentally about norms, as is Obama’s advice and some of the other material presented later in this chapter. There can be negative consequences for acting outside the norms, but you’re generally free to do so as long as you don’t mind the consequences.

[1]You might imagine this to be merely a Chinese problem, or an issue in Saudi Arabia and other places under authoritarian rule. Sadly, the U.S. government is making similar noises. As I write this, Congress is considering a bill, aimed at stopping copyright infringement, that would invite—and in some cases force—Internet service providers to block access to sites deemed to host troublesome material, even if those sites also host totally unobjectionable content.

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