Feb 292012

PayPal recently made news for implementing a policy denying its payment processing services to publications including obscene content.  There are several things objectionable about this policy, including the lack of any clear way of delineating what content would qualify as “obscene,” and its overall censorious impact.

But I’m not entirely sure that PayPal is necessarily the appropriate target for criticism of this policy.  It may be, to the extent that it is a truly discretionary policy PayPal has voluntarily chosen to pursue.  If it could just as easily chosen not to pursue it it can be fairly criticized for the choice it did make.  For this policy is not as simple as banning certain objectively horrible content 100% of all people would agree should be stricken from the face of the earth.  After all, there *is* no objectively horrible content 100% of all people would agree is objectionable.  Instead this policy has the effect of denying market opportunities to all sorts of writers producing all sorts of valid content, even if some people may not happen to like it.  And it does this not just by denying particular publications access to its services but by forcing electronic publishers to overcensor all the works they publish lest PayPal services be shut off to their entire businesses. Continue reading »

Feb 282012

Catching up from January is news about EMI suing the Irish government for not having passed a copyright law that would toughen sanctions for filesharing.  From the Irish Times:

The Irish arm of multinational music group EMI has launched a High Court action against the State as part of its bid to stop the illegal downloading of music.

The Government recently pledged to issue an order to allow copyright holders to compel internet service providers (ISPs) to block access to websites that they consider are engaged in piracy.

However, EMI Records (Ireland) remains unhappy with what it perceives to be foot-dragging on the part of the Government in tackling this issue.

It is concerned that the matter could be delayed again, and that even if a statutory instrument is issued, its contents may not be satisfactory. Continue reading »

Feb 252012

Another dose of quicklinks:

Feb 182012

Last week’s links:

Feb 112012

First, some old links:

Continue reading »

Feb 102012

Last week came news of a park ranger using a taser on a person walking their dogs without leashes. The point of this post is not to discuss the relative merits of leash laws. But there are two aspects to this incident worth considering here.

The first relates to the need for a person to identify themselves when approached by police. (According to reports, upon finding the man walking his dogs off-leash she asked him his name and he gave a false one, an act that apparently had the effect of escalating the incident.) In some respects this aspect is slightly beyond the scope of this blog because it doesn’t directly involve a use of technology. But like the stories of the TSA, it does relate to the insistence of police authorities to be able to know everything about everyone, no matter what, and runs headlong into constitutional protections that would otherwise shield people from that scrutiny.

The other relates to the use of technology by the state. This project generally takes the position that technology itself is neither good or bad; it’s how it’s used that is either. And here we have a use of technology that seems extremely problematic. Continue reading »

Feb 092012

When I was in first grade I got beaten up on the way home from school. It wasn’t too horrible as these things go: a kid came up from behind, grabbed the hood of my jacket, and swung me to the ground. He was in second grade and, as I look back on it, apparently having some issues with impulse control. But it was clearly unacceptable and I found it fairly traumatic (it was an absurdly safe neighborhood, so it wasn’t as if I was expecting trouble). So the school helped me identify the kid responsible and then addressed his behavior with him. At the time, and perhaps even in retrospect, all that seemed an appropriate role for the school to have played.

However, technically I wasn’t on school grounds anymore, and it didn’t take place while school was in session. The only connection to the school was that we had all just left it to walk home, and the kid was a fellow student there. And we were all so young, still learning how to get along with people as much as we were learning reading and math. These were life skills the school was trying to teach us too, and here was a very tangible teaching moment for the school to weigh in on.

But I do not find this logic compelling when it comes to the overreaching some schools have been making with regards to student speech, including off-campus, online speech. Schools have been justifying their punishment of this speech with similar rationales that my elementary school had for punishing my attacker: it’s disruptive to the school community, and people who attack others need to learn not to.

Yet the situations aren’t the same. In my story, the attacker and victim were little kids in primary school, whereas in most of these instances the kids in question are adolescents on the cusp of legal and physical adulthood. (In some instances they are already fully into legal and physical adulthood.) And in my story there was no speech angle. The school sought to punish a violent action, not the expression of an idea. Continue reading »

Feb 082012

Two years ago Paul Chambers, a Twitter user in England, tweeted his frustrations about the closure of the airport in Nortern Ireland was scheduled to fly into:

“Crap! Robin Hood airport is closed. You’ve got a week and a bit to get your shit together otherwise I’m blowing the airport sky high!!”

As this article in the Guardian summarizes,

A week later he was arrested by five police officers, questioned for eight hours, had his computers and phones seized and was subsequently charged and convicted of causing a menace under the Communications Act 2003.

That conviction was first upheld by the Crown Court, and a subsequent appeal has just been heard by the High Court.

Section 127 of the Communications Act 2003 provides that “[a] person is guilty of an offence if he sends by means of a public electronic communications network a message or other matter that is grossly offensive or of an indecent, obscene or menacing character.”  This case appears to boil down to whether or not the tweet was truly menacing, and by whom, and under what standard, its menacing character should be judged.

Chambers insists he meant it as a joke.  There is also no evidence that anyone actually took the tweet to be a credible threat.  In fact there is evidence that the authorities themselves did not take it to be a credible threat.  However because there was the possibility that it could have been taken as a threat, thus far the conviction has held.

Feb 062012

While I was working on this post Eric Goldman beat me to the punch and posted something similar. But great minds and all that… Intermediary liability is also such a crucial issue related to the criminalization of online content I want to make sure plenty of discussion on it takes place here.

In addition to the First Amendment, in the US free speech on the Internet is also advanced by 47 U.S.C. Section 230, an important law that generally serves to immunize web hosts for liability in user generated content. (See Section 230(c)(1): “No provider . . . of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”). Note that this law doesn’t absolve the content of any intrinsic liability; it just means that the host can’t be held liable for it. Only the user who posted it can be.

This small rule has a big impact: if hosts could be held liable for everything their users’ posted, they would be forced to police and censor it. True, the effect of this immunity means that sometimes some vile content can make its way online and linger there, potentially harmfully. But it also means that by not forcing hosts to be censorious middlemen, they are not finding themselves tempted to kill innocuous, or even abjectly good, content. As a result all sorts of vibrant communities and useful information have been able to take root on the Web.

But for this immunity to really be meaningful, it’s not enough that it protect the host from a final award on damages. It’s extremely expensive to have to be dragged into court at all. If hosts legitimately fear needing to go through the judicial process to answer for users’ content, they may find it more worth their while to become censorious middlemen with respect to that content, in order to ensure they never need go down this road.

Which brings us to Fair Housing Council of San Fernando v. Roommates.com, both its seminal piece of Section 230 jurisprudence and its more recent epilogue, each part of the attempted civil prosecution of a web host for fair housing act violations. Continue reading »

Feb 062012

Welcome new readers, whom I’ve now announced this blog to.  It seems to be chugging along nicely, although like any new project it is still subject to modifications and tweaks.  But the core of it won’t change: this blog, a piece of a larger envisioned project, is dedicated to covering the intersection of criminal law and technology, noting and commenting on situations where state sanctions are applying to technology use and development. Continue reading »