Category: Law

Network neutrality’s corporate adversaries

This article was originally published on Salon on August 5, 2010.

Reports of backroom deals by big players that would inhibit Web freedom are unconfirmed, but should make us uneasy

UPDATED

The Internet is abuzz with worries that the Bloomberg news service and the New York Times may have gotten it right in reports that Google and Verizon are cooking up a deal that, in the worst case, would be a blow to our digital future.

The story, denied by both companies (Google tweet, Verizon blog post) in language that gives them plenty of wiggle room, essentially says that the corporate giants are on the verge of an agreement that would, as the Times says:

allow Verizon to speed some online content to Internet users more quickly if the content’s creators are willing to pay for the privilege.

The charges could be paid by companies, like YouTube, owned by Google, for example, to Verizon, one of the nation’s leading Internet service providers, to ensure that its content received priority as it made its way to consumers. The agreement could eventually lead to higher charges for Internet users.

As countless commentators have already agreed, such a deal would mock something that Google has in the past adamantly maintained: the need for content-neutral treatment of what flows on the Net. It’s usually called “network neutrality,” and it means that Internet service providers — typically your cable and phone company for home broadband connections — should not get to decide what bits of data get delivered in what order and at what speed, if at all, based on who’s providing those bits of information.

That is, Verizon should not have the right to decide that it will delay what you see from, say, Salon or my personal blog if Fox News pays Verizon to put its content in the queue first. Why not? Because Internet access is an oligopoly business, creating unprecedented (at least in modern times) choke points for information.

The Federal Communications Commission, which has been making noises about doing more to make net neutrality a requirement, has been holding semi-secret meetings with many of the top players in the online world. If you and I have been represented at that table, it’s news to me, but this is how so much gets decided in our world. (UPDATE: The FCC has reportedly suspended the close-door meetings; good.)

Now we hear that Google — once the foremost proponent of net neutrality and a participant at those meetings — may be cooking up a deal with Verizon, which has also been at the FCC table. The scary thing is how plausible this is; Google is a huge company now with interests that may well be diverging from its previous commitments on the matter.

Google CEO Eric Schmidt, speaking yesterday at a conference, told reporters that the company isn’t backing away in the least from the coreprincipalprinciple (thanks, pragma). Speaking about network neutrality, he said, according to CNET:

“I want to make sure that everybody understands what we mean about it. What we mean is that if you have one data type, like video, you don’t discriminate against one person’s video in favor of another. It’s OK to discriminate across different types … There is general agreement with Verizon and Google on this issue. The issues of wireless versus wireline get very messy … and that’s really an FCC issue not a Google issue.”

So is this about wireless or wired connections, or both? How does this square with the Times report saying that Google would pay Verizon to speed YouTube videos to users’ computers? The murkiness of the entire thing is disturbing, which is one reason it feels too early to declare the imminent death of the Internet as we know it, as some commentators have done.

While I’m not ready to hyperventilate about this alleged deal, I’m more than ready to say that the policy and corporate trajectories are going in the wrong direction. I don’t trust Google to do what’s best for me. I trust Google to do what’s best for its shareholders, and if throwing net neutrality under the bus is best for Google the company will do that in a heartbeat — if allowed.

Take it for granted that the telecom companies will keep pushing for the right to control the content in the data pipes. They don’t want you to remember that they built their networks in large part with the help of government-granted monopolies and other special help; that would make it harder to claim this absolute control.

The backroom dealing is a big part of the problem here. If the FCC wants to come up with the right policy, it should make transparency part of the method.

Schmidt is board chairman of the New America Foundation, a smart-thinking organization that has done a lot to elevate policy conversations in recent years. I hope he’ll read and heed what the foundation said today in a statement:

During the 19th century a handful of wealthy industrialists dominated steel, oil refining and railroads; striking agreements to receive favorable terms for the carriage of their goods, while subjecting farmers and competitors to unreasonable and excessive charges.

Now, over a century later, history is in danger of repeating itself. After weeks of closed-door meetings sanctioned by the Federal Communication Commission, two of the largest corporations in the communications industry have reportedly negotiated an agreement on network neutrality. Though details of the agreement are not available, its terms are immaterial. It should not be the policy of the FCC to allow the largest companies to write the regulations that will determine the future of the Internet.

UPDATE: Scott Rosenberg wonders if the entire leak is just a head-fake, or possibly reflects dissent inside Google. Meanwhile, Google has put out a more strenuous denial, telling the Guardian, among others: “The New York Times is quite simply wrong. We have not had any conversations with Verizon about paying for carriage of Google traffic. We remain as committed as we always have been to an open internet.”

Shirley Sherrod’s revenge

This article was originally published on Salon on July 29, 2010.

Andrew Breitbart should be held accountable for his deceptions, but is there a libel case here?

This is no surprise: Shirley Sherrod, the Agriculture Department official who was forced out in the wake of false claims that racist views affected her work, says she’ll sue Andrew Breitbart for his bogus “journalism” about her. But are the courts the best place to hold him accountable for his sleaze?

I’m not a lawyer, so I’m not going to predict the outcome of any Sherrod libel claim. A court — and Sherrod herself — would have a number of issues to consider, however.

One is whether Sherrod was a public official or public figure at the time when Breitbart posted his now-infamous Web article featuring an excerpt from a video that purported to show her, an African-American, acknowledging racial bias against white farmers and then acting on it to their detriment. (Your town’s mayor is a public official; Lindsay Lohan is a public figure. Which makes California Gov. Arnold Schwarzenegger both, I suppose.)

Public officials and public figures have higher hurdles in libel cases, thanks to Supreme Court rulings that required a showing of “actual malice” on the part of the person making the false statement. Essentially, malice means that the defamatory material was published with the knowledge that it was false, or that the publisher showed “reckless disregard” for the truth. (See the Electronic Frontier Foundation’s page on defamation law for more detail.)

Breitbart has claimed he didn’t know the video was a hack job — purporting to show racism when in fact her point, made clear in the context of the full recording, was that the issue was class, not race and that she did her best to help the farmers. If he didn’t know, did he try to find out? Would that matter in a libel case?

Even if he’s telling the truth about not knowing the true nature of the video, and even if that is enough to make the commentary non-libelous, Breitbart may have another problem: his bogus “correction” of the original. Here’s the correction:

While Ms. Sherrod made the remarks captured in the first video featured in this post while she held a federally appointed position, the story she tells refers to actions she took before she held that federal position.

As friend and colleague Scott Rosenberg has pointed out, this is not much better than the original.

A genuine correction, Scott writes, would read something like this:

Our original story was wrong. We quoted Sherrod to suggest that she drove an old white couple off their farm because she was a racist. In fact, she helped that couple hold onto their farm and used the tale to argue against racism.

So, even if the original wasn’t libelous under the current public-figure standard, is Breitbart’s refusal to admit he was wrong about so much — in the face of utterly clear evidence — legally actionable? Again, I’m not a lawyer, but I have a feeling we’re going to find out the answer.

David Ardia, director of the Citizen Media Law Project at Harvard’sBerkman Center for Internet & Society (I co-founded the project when I was a fellow at the center several years ago), says the correction “appears to give her a stronger case on the question of actual malice” than the original posting — again assuming Breitbart wasn’t complicit in the video’s editing. These cases depend on state of mind, he says, but it seems clear that Breitbart knew at the time he posted the correction what was in the full video.

Some other questions, legal and otherwise, that may come up include:

  • Will California’s shield law let Breitbart keep the name of his source confidential?
  • Should anonymous sources be permitted to launder their defamations through others? (I’ll be coming back to this in another posting.)
  • Was Breitbart doing journalism, however crappy it may have been?
  • Has Sherrod ever said or done anything that could fairly be characterized as having racist intent, regardless of what happened in this case?

If Sherrod proceeds with this case, her adult life will almost certainly be put under a microscope — this one with a court order behind it in discovery proceedings — where Breitbart’s lawyers look for even a hint that she’s the kind of person Breitbart was claiming in the first place. Can anyone whose father was lynched by white racists not have had such things to say, ever? My sympathies lie strongly with Sherrod, and I’d hope a jury’s would as well, but I wonder if she’s ready for the legal attack dogs who may demonstrate even less honor, if that’s possible, than Breitbart.

David Ardia notes that individuals seeking libel damages, even when totally justified, often don’t get the results they expect in an often vicious process. In fact, he tells me, it’s fairly rare to get anything close to full satisfaction.

There’s one more question, and I still think it’s the most important one.

  • Why should anyone believe anything Breitbart says at this point?

The answer, of course, is that Breitbart has no credibility whatever among those who count honor and fairness as an element of journalism. He could regain some with a forthright admission of what he did, but at this point that looks unlikely.

Sadly, he still has a substantial audience. I hope anyone reading this is not among its members.

The WikiLeaks war logs change everything

This article was originally published on Salon on July 26, 2010.

Afghanistan diaries mock secrecy and highlight shifts in war, politics, media. Look for a counterattack

It’s hard to escape the sense that we’ve hit one of those historical pivot points in the wake of  WikiLeaks’ release of the Afghanistan war document trove. The conduct of politics, war and media — so intertwined these days — has changed irrevocably.

A few points seem clear (I plan to revise this as new information becomes available):

First: Daniel Ellsberg said today this is comparable to the Pentagon Papers, which he leaked to the New York Times and others back in the 1970s. I’m old enough to remember that event, and it was a pivotal moment in its own right. (The Atlantic’s Jim Fallows has valuable perspective on the larger meaning of both leaks, as well as their similarities in key ways, as they applied to American policy and war aims.)

If he was contemplating the same decision today, Ellsberg said in April, he’d just scan the documents and put them online. But just posting documents isn’t enough. While media are becoming democratized, there’s still the matter of getting people’s attention beyond a small circle of those who care deeply about any given topic. You want the biggest bang for the buck, you still take your story to the media organizations that will give your story a ride.

So the fact that WikiLeaks” Julian Assange gave an early look at the documents to three selected organizations — the New York Times, theGuardian and Der Spiegel — is proof of his incredible savvy at how traditional media actually operate. In a recent New Yorker profile, he lamented the general uninterest he perceived among journalists when it came to huge stories. When everybody has the story, he realized, they don’t care much about it.

When a few selected journalists at major institutions get it first, that’s how you create buzz. This says more about journalists’ competitive instincts and their Pavlovian response to “exclusives” than it does about their willingness to actually do their jobs for their audiences.

Second: WikiLeaks’ roles — intermediary, publisher, P.R. agent and more — is not utterly unprecedented, but the size and importance of this story takes the shifting changes in media to new levels. (Do read Jay Rosen’s smart instant analysis on all of this.) What do we make of such a “stateless news organization,” as Jay elegantly puts it, which works so hard to subvert so many media assumptions of the past?

Even though the New York Times took huge care in what it printed, and kept some of the material out of its own reports at the request of the Obama administration, a newspaper’s redaction is not very important if WikiLeaks puts out everything on its own.

That’s a big “if” — because WikiLeaks hasn’t put everything out. On its War Diary front page, here’s this item:

We have delayed the release of some 15,000 reports from total archive as part of a harm minimization process demanded by our source. After further review, these reports will be released, with occasional redactions, and eventually, in full, as the security situation in Afghanistan permits.

We’ve become accustomed to seeing traditional news organizations delay publication or broadcasts at the request of governments. The New York Times, you’ll recall, held off for more than a year when it came to telling the American people about the Bush administration’s illegal surveillance of our communications — a decision made in what the paper considered journalistic good faith but which to many of us was an outright betrayal of the craft.

Journalists also do what sources demand, if that’s what it takes to get stories. This is why so many articles have so many unnamed sources.

In this instance, WikiLeaks is holding back, at least temporarily, to keep its source happy. You and I can’t judge whether this is really about minimizing harm or something else. We have to take WikiLeaks at its word, for now. One reason we may be more inclined to do so is the promise that these new documents will be released in full at some point.

Third: A week ago — seems longer, doesn’t it? — the Washington Post ran a superb series of articles on how America’s national-security state is emerging from the 9/11 paranoia, a “Top Secret America” that is at once terrifying and expected given the public’s twitchy fears and politicians’ eagerness to cater to our worst instincts. We learned that almost 900,000 people holding “top-secret” clearance are part of an apparatus that almost certainly spies on everything and everyone it can identify as even remotely, potentially, possibly suspicious — with no real oversight.

(This helps explain the White House’s panicky response to the WikiLeaks war documents, including the spectacle of administration officials complaining that Assange is antiwar and therefore must not be trusted. What if he is? The documents speak for themselves. Or do they? It’s an impressive number, 90,000 documents with the promise of 15,000 more, but do they provide full context? We don’t know. I’ll discuss this in an update later.)

Whatever our keepers of intelligence secrets do know, and whatever abuses they’ve done to our civil liberties to learn them, they must feel less sure today about keeping it all contained. When that many people have access to information, however compartmentalized their bosses may think they’ve made the system, some of it will get out, which leads to something else we should worry about.

Fourth: The WikiLeaks war diary will absolutely spur our powerful institutions to look for increasingly draconian ways to clamp down on how we share information. What WikiLeaks represents is what governments and corporations fear: a threat to their cultures of secrecy and dominance in their domains.

Look for Washington and our corporate media to call for new laws to stop this kind of thing. Politicians and bureaucrats who don’t trust us to know what’s really going on — they are legion in both major parties — have allies among the traditional media and the entertainment industry that would gain enormously if the Internet were to be turned into a slightly more interactive version of 20th century print and broadcast media.

If you think the rich and powerful people who run governments and corporate media aren’t working every day to turn back the clock on information they can’t control, you’re not paying attention. WikiLeaks may well have given them new ammunition for pushing the harshest kinds of restrictions. Do we want to be like Saudi Arabia and China? We may find out one of these days, sooner rather than later.

Finally, this: I have donated money to WikiLeaks in the past. I plan to donate in the future. What Assange and his team are doing is an inevitable result of what technology has brought us in democratizing our media. Some of what they do troubles me. But the bottom line seems to be this: They are performing a public service.

Hometown papers’ editorials unpredictable, for once

This article was originally published on Salon on July 1, 2010.

Local dailies in Hollywood and Silicon Valley get counter-intuitive on copyright-vs.-progress story

Just as politicians tend to favor positions taken by the people who pay for their campaigns, local newspapers tend to editorialize in favor of the prevailing economic realities in their regions. That’s why it was surprising in recent days to see how the top daily newspapers in their respective regions of California handled Google’s victory, at least temporarily, over Viacom in a copyright case that’s one battle in the war over who’ll control the Internet.

You’ll recall that a federal judge slapped down Viacom’s claim that Google’s YouTube video service, by allowing its copyrighted videos to be posted on the site, was contributing to copyright infringement. The judge said YouTube was following provisions of the current copyright law that say, among other things, that a site owner is not immediately responsible for what others post there. However, once notified by a copyright holder that it’s hosting infringing work, the site is obliged to take it down.

On Tuesday, the Los Angeles Times, which has often pitched Hollywood’s angle on a variety of issues, published a surprisingly perceptive editorial, very much not taking the film studios’ side. The piece observed that the judge’s ruling was a needed rebuff to yet “another effort to shift copyright holders’ responsibilities onto the middlemen who have opened new distribution pathways online.” It went on:

Those efforts are understandable, given how quickly works can spread around the world, and how many sites can become unauthorized sources. But speedy, low-cost distribution is one of the great advantages of the Internet, not a flaw.

There was more than a little sympathy for the Hollywood dilemma — way more than the Copyright Cartel deserves, in my view — but the Times editorial page showed worthy independence of immensely powerful local interests in its analysis. Two cheers for the Times.

But it’s just one cheer for the San Francisco Chronicle’s editorial board after reading its day-earlier take on the ruling — and that’s solely because the Chronicle didn’t genuflect to the Bay Area’s dominant local businesses in Silicon Valley’s technology community. They overwhelmingly sided with Google in the matter, for sound reasons that go beyond money. (My view on the case, as posted here last week, is that the ruling meant progress for free speech and collaboration much more than a milestone in a corporate war.)

The Chronicle’s editorial grudgingly accepts that the judge knew what he was talking about regarding the law, but that seems to be the problem. For the editorial writer, this is really about who’s going to control content on the Internet — and for the Chronicle, control appears to be binary:  If the creator of media content can’t have absolute control, he or she will be forced to give it away.

The final line is the tip-off to what’s ultimately on the minds of the editorial board: payment for creating media. Calling for new copyright laws — though what they should contain never makes its way into the piece — the newspaper says, “We can’t expect people to create things for free — unless we believe that the only people in our society who can be creative are those who are already rich.”

Actually, we can expect people to create lots of things for free, even people who aren’t rich. They always have, and always will. And we can expect the creative destruction of technological and economic competition to bring us adapted or new business models that will accept technology’s realities and not try to push the proverbial toothpaste back into the tube.

Google retreats in China

This article was originally published on Salon on June 29, 2010.

Search giant gives Beijing half a loaf, but will regime be satisfied?

Clever dodge or capitulation? Google’s latest move in its ongoing battles with China looks like a bit of both.

When Google closed its search operations in China last March rather than obey government censorship edicts, the search company tried somecorporate judo: It redirected searches from Chinese customers to servers in Hong Kong, thereby providing more honest results than the ones it replaced.

Too clever by half, the Beijing regime decided — and it ordered Google to stop its tactic or lose its ability to do pretty much any business in the world’s most populous nation. Disappointingly but not surprisingly, Google has done just that.

But in what is clearly a concession to the latest Bejing must-censor edicts, Google offered half a loaf to China search users and a half-raised middle finger to Beijing: They can still get the mostly uncensored Hong Kong results, but now they have to do so via hyperlinks rather than automatically. David Drummond, Google’s top lawyer, explained it this way on the company’s blog:

We have therefore been looking at possible alternatives, and instead of automatically redirecting all our users, we have started taking a small percentage of them to a landing page on Google.cnthat links to Google.com.hk—where users can conduct web search or continue to use Google.cn services like music and text translate, which we can provide locally without filtering. This approach ensures we stay true to our commitment not to censor our results on Google.cn and gives users access to all of our services from one page.

But how long will this last? China is nothing if not peristent on its censorship, and it’s hard to imagine that the Beijing censors will sit still for what they’re likely to see as further insult.

Rebecca MacKinnon, visiting Fellow at Princeton’s Center for Information Technology Policy (as well as friend and former colleague at the Harvard Berkman Center for Internet & Society), sees the situation playing out in four possible scenarios, each of which feels plausible. I’m not making a guess, because the Google-China tussle is so fluid.

Eventually, one guesses, Google will have to make the most serious decision of all: whether to shut down China operations entirely or keep making concessions. Will its fiduciary duty to shareholders outweigh moral concerns? Right, silly question.

Viacom’s YouTube loss a victory for online speech, collaboration

This article was originally published on Salon on June 24, 2010.

Judge says YouTube obeyed copyright law in widely watched legal case

UPDATED

Echoing most news media, the New York Times called it “a major victory for Google in its battle with media companies,” but yesterday’s decision(pdf) by a federal judge in a closely watched copyright case was, most of all, a victory for free expression.

U.S. District Judge Louis L. Stanton tossed out a Viacom lawsuit against Google’s YouTube video site, in which the media conglomerate said YouTube, by allowing its copyrighted videos to be posted on the site, was was contributing to copyright infringement.

At issue, in its most basic form, was whether the “safe harbor” provisionof the Digital Millennium Copyright Act (DMCA) meant what it said. Boiled down and oversimplified, safe harbor means this: If you host other people’s work, you are not immediately responsible for what they post on your site. Once notified by a copyright holder that you’re hosting infringing work, you’re obliged to take it down.

This part of the DMCA — a law that has many otherwise terrible elements — has been a boon to speech in the Digital Age. Online, we live in collaborative spaces much more than the top-down, centralized media world of the past. If site hosts had to investigate and approve everything their users wanted to post, they’d be unable to exist as we know them today. That’s what the Copyright Cartel, of which Viacom is a charter member, would prefer. But it’s not what Congress voted to do.

Judge Stanton said the DMCA’s notification system worked fine in the case at hand. Even Viacom agreed that “when YouTube was given the (takedown) notices, it removed the material.” (Do read the ruling in full; there’s enough plain English that you can learn a lot even if you don’t understand lawyer-speak.)

I don’t mean to suggest that the DMCA’s notification system is perfect; media companies are famous for abusing the process, too often telling sites that all sorts of perfectly legitimate content is infringing on their copyrights. Check out the great Chilling Effects site for voluminous examples. If anything, the DMCA still gives copyright holders too many weapons to prevent legitimate expression. But the safe-harbor provision has been a big help in general.

It’s not the only time Congress has acted to encourage robust activity online. A related provision in a different law (Section 230 of the CDA, or Communications Decency Act) protects site hosts when people posting comments, for example, say things that others find defamatory. It’s the commenter, not the site host, who’s responsible for the speech.

Needless to say, the battles are not over. Viacom said it’ll appeal Stanton’s ruling, and Section 230 is constantly being picked at by those who want to shut down speech they don’t like.

Still, yesterday’s decision is a gratifying milestone. Congratulations to Google, but especially to the rest of us who believe in the widest possible online expression.

UPDATE: My friend Miguel Helft, who reported the decision for the New York Times, writes:

The NYT indeed said it was a major victory for G. But in the second graph we made the other point, which is that the ruling could have a favorable impact on the entire UGC world, which is in line with your argument. We later expanded on that with commentary from various analysts/legal minds.

Fair enough. But the story lede (for arcane reasons journalists call the first, or lead, paragraph in a story the lede) and headline were about Google. I looked long and hard for a lede in any news outlet, but didn’t find one, that focused on the victory for free expression along with the immediate Google win or Viacom loss.

Some comments here suggest it’s time for a remedial column or two on copyright. Whether copyright holders like it or not, they don’t have the absolute right to decide how their published work may be used, and by whom, through eternity. And those who believe we should ban tools that can be used for illicit purposes, not just beneficial ones, should ask themselves what would happen if we applied that standard widely.

Net Neutrality Has Always Been Up to Lawmakers: Will They Pay Attention Now?

Ars Technica: Court: FCC had no right to sanction Comcast for P2P blocking. The FCC’s decision to sanction Comcast for its 2007 P2P blocking was overruled today by the US Court of Appeals for the DC Circuit. The question before the court was whether the FCC had the legal authority to ‘regulate an Internet service provider’s network management practice.’ According to a three-judge panel, ‘the Commission has failed to make that showing’ and the FCC’s order against Comcast is tossed.

We’re in scary territory, but it’s not a big surprise that we are.

Comcast and the other carriers will be emboldened to continue what they’ve started: the subjugation of America’s broadband future to their interests and those of their entertainment industry partners and subsidiaries. Our second-class status in broadband will soon be even worse if they get what they want: turning the Internet to a television-on-steroids system where control is in the middle, where the edges of the networks — that is you and me — do what the center tells us we may do.

The cable and phone companies have built networks from the favored position of having been government-granted monopolies. They are an effective duopoly — wireless providers can’t provide the same bandwidth and they are trapped by the oligopoly (carrier owned, to a major extent) in the backbone networks — and they are going to use it for their benefit, not ours.

This isn’t just a free-speech issue at its core. It also raises some basic economic questions; America lags further and further behind the rest of the developed world in taking advantage of broadband’s potential, and the consequences of our inaction grow more serious every year.

While I’m skeptical of all of the specific network-neutrality fixes I’ve seen so far — unintended consequences worry me — I’m absolutely freaked out at the trend. We are turning over our fundamental rights to communicate and collaborate to companies that have not earned even a semblance of trust.

The FCC’s incoherent policy-making is only partly the issue here. More important is the refusal of Congress to do its job. If only that was surprising.

Network neutrality has always been the kind of issue requiring serious engagement from the lawmakers. As they do so often, they’ve ducked and dodged, leaving it to regulators to make vital policy decisions.

Will Congress wake up? And even if it does, given our pay-to-play lawmaking environment these days, will it do the right thing? My doubts keep growing, on both counts.

New Legal Help for Online Journalists

cmlp logo.jpgThe Berkman Center’s Citizen Media Law Project has launched the Online Media Legal Network (OMLN):

a new pro bono initiative that connects lawyers and law school clinics from across the country with online journalists and digital media creators who need legal help. Lawyers participating in OMLN will provide qualifying online publishers with pro bono and reduced fee legal assistance on a broad range of legal issues, including business formation and governance, copyright licensing and fair use, employment and freelancer agreements, access to government information, pre-publication review of content, and representation in litigation.


This is a valuable initiative. It will help many more people than the individuals who receive assistance from volunteer lawyers and law students in specific cases.

One of the common misconceptions in digital media over the past few years has been the notion that bloggers may be somehow exempt from the laws that apply to other forms of publishing. Nothing could be further from the truth.

The laws aren’t only about defamation, though that’s where the biggest threats to independent journalists can be found — in part because the independents don’t have legal teams at their disposal. Some plaintiffs have sued or threatened to sue largely to shut down criticism, not because they’ve actually been defamed, and just the threat of a lawsuit is often enough to shut down legitimate speech.

There are lots of other legal issues you need to think about if you publish on the Web, including fair use, freelance agreements, setting up businesses and the like. The new network will help with those issues, too, among others.

The CMLP has lined up an impressive collection of lawyers and law clinics for this initiative. They all deserve thanks as well.

(Note: I’m a CMLP co-founder and advisor.)

Scrubbing the Past

NY Times: Two German Killers Demanding Anonymity Sue Wikipedia’s Parent. Wolfgang Werlé and Manfred Lauber became infamous for killing a German actor in 1990. Now they are suing to force Wikipedia to forget them.

The legal fight pits German privacy law against the American First Amendment. German courts allow the suppression of a criminal’s name in news accounts once he has paid his debt to society, noted Alexander H. Stopp, the lawyer for the two men, who are now out of prison.

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Old laws are inadequate to new eras and technologies, and political boundaries have limited meaning in a networked world.

The German law balanced the rights of those who’d served their time against public knowledge, and came down, by any American First Amendment standard, absurdly far on the wrong side. But it is well-meaning, and was written in a time when it was possible to control what media did within a political jurisdiction, at least for widespread public attention, not in a time when anyone can publish for a global audience.

The networked-world element of the case is a reminder of an ongoing problem in the Digital Age. It’s bad enough that the Germans have such a law, but it’s their country. What’s clearly over the top is trying to pull this information from the English version. The Wikimedia Foundation has rightly refused. (This reminds me to make a donation to the project.)

I worry that the German lawyers — and authorities — will escalate. Even though Wikimedia has no assets in Germany, I’d be unsurprised if the case finds its way into American courts, for no other purpose than forcing the foundation to spend money defending itself. That’s a punishment in its own right.

And suppose the German lawyers persuade courts there to order the arrest of Wikimedia Foundation employees should they visit the country. This isn’t probable, no doubt, but if I were on the board I’d keep a close eye on the risks of stopping in Germany even to change planes.

The broader lessons are part of the changing nature of communications — and of changing norms. The Electronic Frontier Foundation’s Jennifer Grannick addresses the former, in context of this case, in this way:

At stake is the integrity of history itself. If all publications have to abide by the censorship laws of any and every jurisdiction just because they are accessible over the global internet, then we will not be able to believe what we read, whether about Falun Gong (censored by China), the Thai king (censored under lèse majesté) or German murders.

We’ll be fighting these fights for decades to come. People who would control what others can read (listen to, view, etc.) — in order to control what they think and, ultimately, do — will not stop trying to have such powers. (Reminder to self: Send EFF a donation, too.)

But the deeper, harder issue is changing norms, because we have to ask ourselves if we truly want permanent records of everything we’ve ever done — and if there’s no choice in that matter whether we want people only to know us for the worst of our actions, not the sum of ourselves.

The German murders, Werlé and Lauber, don’t get much sympathy in this regard. Nor should they: Murder strikes me as the central act of these men’s lives, though we should also note that they have paid the debt to their society that entitles them to re-enter that society with some respect from others, difficult as that may be. Do they really expect, however, that even a ban on publishing their names will expunge their deeds from people’s knowledge? Yet the motive behind the German law is a sound one: to help those who’ve transgressed restore their membership in society.

As the Wall Street Journal reported this week, job seekers are trying to get minor criminal offenses fully expunged from court records and online databases, especially ones where plea agreements promised such nullifying of the record. We are apparently so unforgiving as a society that even an arrest at some point in your life can be a job disqualification, even if you were totally innocent or if the charge was absurdly petty.

Here’s the problem. Databases will keep this stuff around, and on a Web where duplication is the nature of the system, there will ultimately be no way to fully get rid of anything — or at least we won’t be able to rely on its disappearance, whether through the obscurity of printed records in dusty courthouse basements or actual destruction of records as promised.

Which comes back to changing norms. Until we start weighing old acts against the totality of someone’s experiences and deeds, we’ll hold a sword over each others’ head. Is this really the way we want to live?