Category: Law

Fix for anonymous sleaze is in our attitudes, not laws

This article was originally published on Salon.com on January 5, 2011.

It’s vital to protect anonymous speech; start by cleaning up the online cesspools

The people who want to control online speech have won some influential allies. New York Times blogger Stanley Fish has given a glowing endorsement to a new book of essays in which law professors — — who profess to believe in free speech — call for the curtailment of online anonymity.

Their hearts are in the right place. Parts of the Internet are cesspools of slimy speech, where anonymous cowards hide behind virtual bushes and say outrageous, untrue things about others. I’ve been attacked in this way, and I don’t like it.

So of course anyone with a conscience wants to encourage accountability and responsibility in speech. But the key word there is “encourage,” not “force.” It’s essential to preserve anonymity, and to appreciate why it’s vital. Anonymity protects whistle-blowers and others for whom speech can be unfairly dangerous.

If Fish’s description of the book is accurate, the authors are offering a cure that is much more dangerous than the disease: They would require Internet sites to take legal responsibility for what other people post on their sites.

Worse, they pay too little attention to the people who can do most to solve this problem. Who are those people? Us, you and me, who are the audiences for speech. We are the ones who need to take more responsibility. I’ll come back to this, but first let’s understand why the authors’ fix would stifle online speech in dangerous ways.

Fish writes:

The Internet and the real world, [essayist Brian] Leiter concludes, “would both be better places” if Internet providers were held accountable for the scurrilous and harmful material they disseminate.

How might that be managed? The answer given by the authors in this volume involves the repeal or modification of Section 230 of the Communications Decency Act, which says that no provider of an Internet service shall be treated as the publisher of information provided by another. That is, the provider is not liable for what others have said, and courts have interpreted that section as immunizing providers even when they “have knowledge that [a statement] is defamatory or invasive of privacy.”

Modifying Section 230 is risky business. This law has done more to encourage robust speech, by far, than any other piece of legislation in recent history. The immunity rests with the host. It does not extend to the person who posted the defamatory material. And courts have routinely required hosts to turn over information — such as IP addresses — about people who’ve posted defamatory material, while also generally resisting fishing expeditions by parties, especially companies, that want to shut down harsh but non-defamatory criticism.

If the law required Internet sites to monitor and control the speech they hosted, all kinds of conversations — mail lists, forums, comment threads and more — would simply disappear. The legal exposure for hosts would simply be too great for most people or companies to take the chance; being sued, even if you’re entirely in the right, can be ruinous financially.

What we need to modify most is our own attitudes.

This should start with the way we treat a kind of anonymous speech that I consider vastly more pernicious than the crapola I see on random blogs and comment threads: the too-common use of anonymity in Big Media reporting. As I’ve written in my new book, “Mediactive,” I have a rule of thumb. When a news report quotes anonymous sources, I immediately question the entire thing. I’m skeptical enough about spin from people who stand behind their own words, but downright cynical about the people who use journalist-granted anonymity to push a position or, worse, slam someone else. When someone hides behind anonymity to attack someone else this way, you shouldn’t just ignore it.In the absence of actual evidence, you should actively disbelieve it. And you should hold the journalist who reports it in contempt for being the conduit.

I have even less respect, if that’s possible, for most online comment threads. Anonymous commenters on blogs or news articles deserve less than no credibility on any BS meter. They’d have to work hard just to have zero credibility.

Pseudonyms are a more interesting case, and can have value. Done right, they can bring greater accountability and therefore somewhat more credibility than anonymous comments. Content-management systems have mechanisms designed to require some light-touch registration, even if it’s merely having a working e-mail address, and to prevent more than one person from using the same pseudonym on a given site. A pseudonym isn’t as useful as a real name, but it does encourage somewhat better behavior, in part because it’s more accountable. A pseudonymous commenter who builds a track record of worthwhile conversation, moreover, can build personal credibility even without revealing his or her real name (though I believe using real names is almost always better).

Conveners of online conversations need to provide better tools for the people having the conversations. These include moderation systems that actually help bring the best commentary to the surface, ways for readers to avoid the postings of people they find offensive and community-driven methods of identifying and banning abusers.

Again, while recognizing the real problem of anonymous sleaze, I emphasize again that it’s vital to preserve anonymity while encouraging its responsible use. And it’s even more vital for us to put anonymous attacks in their place: the virtual garbage pits where they belong. Only we can do that.

So when people don’t stand behind their words, we should always wonder why — and make appropriate adjustments in how we react to what they say.

(Note: I’ll be discussing this and other topics on Jan. 12 in a talk at the New America Foundation in Washington, D.C. You can find more information about the event here.)

The FCC’s weak new “open Internet” rules

This article was originally published on Salon.com on December 21, 2010.

A partisan vote on Tuesday displeases everyone. And everyone’s right

The neutering of the Internet is now the unofficial policy of the Federal Communications Commission. Contrary to the happy talk from FCC Chairman Julius Genachowski at a rule-making announcement today in Washington, the move is well underway to turn the Internet into a regulated playground for corporate giants.

Tuesday’s FCC vote on rules purportedly designed to ensure open and free networks was a 3-2 partisan charade, with Genachowski and the other two Democratic commissioners in favor and the two Republicans against. It did nothing of the sort. The short-term result will be confusion and jockeying for position. Genachowski’s claim that the rules bring “a level of certainty” to the landscape was laughable unless he was talking about lobbyists and lawyers; their futures are certainly looking prosperous. The longer-range result will be to solidify the power of the incumbent powerhouses — especially telecommunications providers and the entertainment industry — to take much more control over what we do online.

Continue reading The FCC’s weak new “open Internet” rules

Some journalists stand up for WikiLeaks

This article was originally published on Salon.com on December 13, 2010.

Unfortunately, they’re not American journalists

It’s heartening to see some journalists standing up for principle in the WikiLeaks affair. A case in point is this letter to Australian Prime Minister Julia Gillard. It begins:

The leaking of 250,000 confidential American diplomatic cables is the most astonishing leak of official information in recent history, and its full implications are yet to emerge. But some things are clear. In essence, WikiLeaks, an organisation that aims to expose official secrets, is doing what the media have always done: bringing to light material that governments would prefer to keep secret.

In this case, WikiLeaks, founded by Australian Julian Assange, worked with five major newspapers around the world, which published and analysed the embassy cables. Diplomatic correspondence relating to Australia has begun to be published here.

The volume of the leaks is unprecedented, yet the leaking and publication of diplomatic correspondence is not new. We, as editors and news directors of major media organisations, believe the reaction of the US and Australian governments to date has been deeply troubling. We will strongly resist any attempts to make the publication of these or similar documents illegal. Any such action would impact not only on WikiLeaks, but every media organisation in the world that aims to inform the public about decisions made on their behalf. WikiLeaks, just four years old, is part of the media and deserves our support.

Continue reading Some journalists stand up for WikiLeaks

Will WikiLeaks lead to licensing of journalists?

This article was originally published on Salon.com on December 9, 2010.

By defending the organization as media, which we should, we may invite some unwanted consequences

Twitter may be the worst medium around for nuance, but a series of 140-character messages can at least clarify a disagreement. A couple of conversations there last night brought home some fundamental issues in the WikiLeaks affair, at least as it affects the future of journalism and free speech.

One conversation was with a journalist friend, Jason Pontin, editor of the MIT Technology Review. Like many people, he’s not thrilled with all of what Julian Assange and his WikiLeaks team are doing. But when he boiled down a key issue to this — “Is @wikileaks a media entity, and is Assange a journalist?” — he hit the heart of a debate that is going to rage in coming weeks and months.

Continue reading Will WikiLeaks lead to licensing of journalists?

Defend WikiLeaks or lose free speech

This article was originally published on Salon.com on December 6, 2010.

Journalists should wake up and realize that the attacks on the whistle-blower are attacks on them, too

Journalists cover wars by not taking sides. But when the war is on free speech itself, neutrality is no longer an option.

The WikiLeaks releases are a pivotal moment in the future of journalism. They raise any number of ethical and legal issues for journalists, but one is becoming paramount.

Continue reading Defend WikiLeaks or lose free speech

Online, the censors are scoring big wins

This article was originally published on Salon.com on December 3, 2010.

Attacks on WikiLeaks are part of an attack on free speech, aided by the companies that make up the Web’s backbone

UPDATED

The WikiLeaks affair is highlighting the Internet’s soft underbelly: the intermediaries on which we all rely to store our information and make it available. We are learning, to our dismay, that we cannot trust them. Combine that with increasing government intervention, we’re also learning that the Internet is somewhat easier to censor than we’d assumed.

This should worry anyone who believes that we’re going to move our data and online lives into the fabled “cloud” — the diffused online array of hardware and services where, proponents say, we can do our online work, play and commerce without the need for storing data on our own personal computers. Trusting the cloud is becoming an act of faith, and it’s time to question that faith.

Continue reading Online, the censors are scoring big wins

A few questions about the WikiLeaks release

This article was originally published on Salon.com on November 29, 2010.

Among others: How secret are diplomatic cables when 3 million people have access to them?

UPDATED

Once again, WikiLeaks has thrown governments and journalists into a maelstrom of fear, uncertainty and doubt. It’ll be weeks, if not longer, before we know the full scope of the diplomatic cables, but a few things are already clear enough.

What we know is being covered relentlessly here and across the Web. It’s what we don’t know that I’d like to note. So, here are some questions, many of which prompted by tweets and commentary elsewhere, for the major players in this drama.

Continue reading A few questions about the WikiLeaks release

Music industry wants even more control

This article was originally published on Salon on August 25, 2010.

Not satisfied with our current Draconian rules, the copyright cartel aims for absolute power

In the surely-you’re-joking category, here comes the music industry to say it needs even tougher copyright rules. Sorry, no joke.

As CNET’s Declan McCullagh reports from a conference in Aspen, Colo., Cary Sherman, president of the Recording Industry Association of America, complained about “loopholes” in the current copyright system. But what he calls loopholes are among the few parts of the law that remotely temper the absolute control that the RIAA and its allies, mainly in the movie business, want copyright holders to have over everything digital.

Specifically, the entertainment industry is looking to enforce copyright by getting third parties to do some of the dirty work. In particular, the industry wants companies such as search engines and Internet service providers — the latter is typically your phone or cable company — to keep an eagle eye on what you do with your own computer, inspecting what you download and upload in granular ways. This is the rough equivalent of getting your phone company to listen to your calls to make sure you aren’t planning anything illegal.

The way the entertainment companies are trying to make this kind of thing work in other countries is to get ISPs to shut down users’ access after accusations of infringing behavior, with harder punishments also a possibility. A legal battle royal is under way in France and the European Union over this insane policy.

What the cartel wants, essentially, is to make all the decisions about how what it produces may be used in any way. This flies in the face of tradition and law, and would inevitably lead to a regime under which we would all need permission to use digital content for any purpose whatsoever.

As Internet access consolidates into the hands of a few companies, these threats become more serious, not so much because the ISPs want to be spying on you but rather because they may be forced to do so. Let your ISP know you won’t be happy if this happens.

Feds: No crime spying on kids via webcams

This article was originally published on Salon on August 18, 2010.

District loaned laptops to students, then used spyware to take pictures of them. Prosecutors: No “criminal intent”

Federal prosecutors are showing uncommon sympathy for some Pennsylvania school officials who spied on students via webcams in their school-owned laptop computers: They’ve decided not to prosecute.

The reason? “For the government to prosecute a criminal case, it must prove beyond a reasonable doubt that the person charged acted with criminal intent,” the U.S. Attorney’s office said in a statement. “We have not found evidence that would establish beyond a reasonable doubt that anyone involved had criminal intent.”

Let’s leave aside the fact that people are charged all the time for criminal offenses despite having no idea they’re committing crimes. And since when did ignorance of the law confer immunity?

Let’s focus instead on the fundamental creepiness in what happened at the Lower Merion School District in suburban Philadelphia. A lot of the facts and fuller context in this privacy debacle remain murky. Let’s hope that the discovery process in the several civil suits results in a more complete disclosure, but we do know this:

The district loaned laptop computers to students and then, under a program the district said was aimed at recovering lost or stolen machines, used spyware to capture tens of thousands of images of kids. Some of those images, it emerged in civil suits filed against the officials, were taken in students’ homes — and some of those in their bedrooms. Oh, just a terrible mistake, said the district.

Some 38,000 images from six computers alone, not to mention video chats and IMs in at least one case? If this is an oversight, a mere mistake, yike. But if so, the people who were that sloppy shouldn’t be trusted to teach elementary arithmetic or anything else.

There’s apparently no state law against this kind of thing. That’s outrageous by itself. And while the feds have concluded that they can’t pursue criminal charges, no one should even consider letting the school district off the hook in any moral way for its reprehensible behavior.

The case also reminds us that civil lawsuits play a vital role in our society. Yes, some plaintiffs’ lawyers launch meritless lawsuits and cause wide harm. But sometimes, as in this case, they are the last line of defense when powerful institutions beat up on individuals. We forget that at our peril.

Google-Verizon plan: Why you should worry

This article was originally published on Salon on August 9, 2010.

Ominous references to the “public Internet” inescapably suggest something else entirely

So Google and Verizon had not, in fact, cooked up a special business dealfor their mutual benefit. But what they have cooked up, as announced today, may be no great deal for you and me: the idea of a parallel network that could, in the long run, become the default network — at the very least for entertainment and truly advanced services.

At first glance, no one could argue with what the companies’ CEOs, Eric Schmidt and Ivan Seidenberg, announced on Monday: A “joint effort by two companies to offer a suggestion” to public policy makers, as Seidenberg put it. (Both CEOs denounced last week’s media hyperventilating, based on stories in the New York Times and Bloomberg News, as bogus journalism, though they didn’t use that precise phrase. “There is no business relationship,” Schmidt said on a conference call.)

Their suggestion? Essentially, it was to insist that the Internet should remain open and freely available, with enforcement teeth to ensure what most people would call network neutrality, the idea that carriers can’t discriminate against one content provider in favor of another.

But the proposal went further. It would promote the expansion of new services, not part of the  Internet as we know it now, that would go beyond anything we have today. These new services, if Congress and regulators enacted the companies’ proposal, could not be designed to be end runs around net neutrality; they would have to be genuinely new.

But here’s the rub: You should not trust Verizon or other carriers, or Google for that matter, to follow through in ways that are truly in the interest of the kind of open networks the nation needs. Throughout the conference call, we kept hearing references to the “public Internet” — an expression that leads inescapably to something else.

If Schmidt was telling the truth when he said Google’s overwhelming focus will remain on the public Internet, such as his promise that YouTube will remain there, that’s great. I have no reason to disbelieve him, and Google’s track record to date is strong on this issue. But plans change, managements change, and corporate goals change.

The other big news in today’s announcement was Google’s clear retreat on network neutrality when it comes to wireless networks. As Susan Crawford, professor at Cardozo Law School and an expert on all things Internet, explains: “That’s a huge hole, given the growing popularity of wireless services and the recent suggestion by the Commission that we may not have a competitive wireless marketplace.”

For Verizon’s part, the acceptance of what sounds like fairly serious neutrality rules on current wire-line networks was welcome. But I see the rest as a Trojan Horse for a modern age. Verizon and other carriers have every incentive, based on their legacies, to push network upgrade investments into the parallel Internet, not the public one.

With one exception, the carriers have all but abandoned their push to bring the kind of wired-line bandwidth that other nations — Japan, South Korea, France and Sweden come immediately to mind — have done. Verizon has all but stopped building out its fast fiber-optic network to homes, leaving Comcast as the provider that is most ardently boosting connection speeds via its cable lines. (Even Comcast’s fast speeds are nothing special next to what carriers in those other nations have provided.)

So when Seidenberg said, “We have to be flexible,” my immediate thought was, uh-oh.

I’ve been worried for years that the game was on to turn the carrier-controlled Internet into just another version of television. Maybe the carriers won’t get away with that.

The right way forward is to have sufficient bandwidth that we can do pretty much anything we choose using public networks — a true broadband infrastructure where packet-switched services (moving data around, at super-fast speeds, in little packages that are reassembled at the user’s device) are the basis for all communications.

Instead, the game is on to create a parallel Internet. It’ll still be packet-switched. But they won’t call it the Internet anymore. That’s an end game we should not encourage.