Jul 282013

I was asked to write the “Posts of the Week” for Techdirt this past weekend and used it as an opportunity to convey some of the ideas I explore here to that audience. The post was slightly constrained by the contours of the project — for instance, I could only punctuate my greater points with actual posts that appeared on Techdirt last week — but I think they held together with coherence, and I appreciated the chance to reframe some of the issues Techdirt was already exploring in this way.

In any case, I’ve decided to cross-post my summary here, partly because I always like to host a copy of my guest blog posts on one of my sites, and partly because it gives me a chance to update and annotate those ideas further. Please do go visit Techdirt though, which was kind enough to ask me to do this, to read more about the items described below.

Hello, Techdirt readers! I’m Cathy Gellis, an Internet and IP lawyer in the San Francisco Bay Area. You may have heard of me from the lawsuit Paul Levy and I filed against Charles Carreon to protect a blogger’s free speech rights and some of the blogging I did on Prenda Law over at Popehat. I also have been blogging for ages at cathygellis.com and more recently at digitalagedefense.org, a project I started in order to take a closer look at how the government has been trying to regulate and potentially punish technology use and development.

And that’s the lens I want to use to look back at last week’s posts.

It’s one thing for the government to pass laws that give citizens rights vis a vis each other. We see how the grant of these rights plays out, for instance, with most intellectual property law, and on that front this past week Techdirt covered one of the latest rounds in the Prenda saga, a powerful sanctions ruling by Judge Chen awarding the defendant the attorney fees he sought with some devastating findings as to the abusiveness of the litigation overall. It’s no picnic being on the receiving end of a civil suit, especially not one as unjustified as those promulgated by Prenda or the defamation suit filed by an AIDS denialist against one of his critics, all lawsuits that stand to be incredibly chilling towards people using this amazing communications technology, the Internet.

Some commenters got confused and thought I was speaking to government creation of rights in a human rights sort of sense. Above I was merely referring the creation of rights-as-causes-of-action that people can sue others for damages for violating, as in copyrights, rights guaranteed by tort laws, contractual rights, etc. The types of things one private party would sue another for in civil court — and doesn’t need to call the police to help vindicate.

But what’s really chilling is when the government directly intercedes with the speech taking place over the Internet. Last week included news about UK prime minister David Cameron insisting that all UK ISPs filter the content that people consume on the Internet (and filter it according to what a company in China thinks is appropriate for people to view), which, on its face, is a direct assault on Internet speech as it interferes with the ideas people can communicate or consume. But sometimes the government assault is more indirect, as we see in the case of the state attorneys general demanding Congress amend 47 U.S.C. Section 230, a law that insulates Internet intermediaries from whatever liability may be manifest in content created by their users. Which is not to say that there never could be (or never should be) liability in that user-posted content; Section 230 merely requires the actual speaker to be held accountable for that content, not the Internet intermediaries who did not create it. What offends the attorney generals is that sometimes that content runs afoul of criminal law, and as currently written, Section 230 requires them to go after the actual creators of that content in order to punish them, not the intermediaries who had nothing to do with its creation, whom they would apparently prefer to target.

The state AGs argue that the intermediaries do, in fact, have something to do with the creation of the content because but for the intermediaries that content would never have gotten posted. But that’s exactly right: but for Internet intermediaries absolutely no content gets posted on the Internet, and if we make it possible (and, indeed, likely) for an intermediary to be held liable (and in this case criminally liable) for all the content they intermediate, it will be too dangerous a proposition for an intermediary to enable even non-wrongful content to appear on their systems. As a consequence, whole swathes of legitimate content and ideas we currently get to enjoy on the Internet won’t be available.

And lest we think this chilling effect is a purely hypothetical concern, we saw it play out this week with KTVU demanding YouTube (an intermediary) remove the video of its anchors incorrectly listing the Asiana pilots’ names over the air, despite the fact that it remains (particularly as KTVU fires the people it believes responsible) an issue of public concern worthy of discussion. KTVU has this sort of leverage over YouTube because liability for intellectual property is already exempted from Section 230, meaning that the intermediary now has little choice but to remove content others posted through it in order to avoid having to potentially bear liability for it, even when such demands for deletion are nothing but a textbook case of censorship.

The KTVU example illustrates the failure of the Digital Millennium Copyright Act. Unlike with Section 230, which completely immunizes the intermediary for the content it hosts as long as it was created by others, the DMCA predicates its “immunity” (which is actually a safe harbor from copyright infringement remedies, rather than immunity from suit) only if the intermediary does certain things, including, most importantly, removing content that a putative copyright owner claims violates its rights. In contrast, no such removal must happen for the intermediary to benefit from Section 230’s protections, which means that legitimate content is less vulnerable to attack by critics of it and thus can remain available online. Not so with the DMCA, which as the KTVU situation presents one of the many, many examples of, is rife for abuse. At minimum the DMCA and its jurisprudence is hungry for reform to alleviate the abuse problem, but there probably always will be attempts to game it and thus the DMCA serves as a cautionary tale for why Section 230’s pure immunity is so important to maintain. For even when it comes to allegations of criminal wrongdoing in content (rather than copyright), we see that the government often gets those wrong too.

Of course, maybe there are good reasons certain Internet content should somehow be illegal, either civilly or criminally (for instance, maybe this Bitcoin outfit really was running a Ponzi scheme), and, subject to constitutional limitations, as a democratic society, we can make the law criminalize whatever we want it to in deference to those reasons. On a practical level, however, sometimes this lawmaking goes better than others, and last week Techdirt documented some of the highs and lots of the lows in lawmaking. One significant low is the continued development of the Trans-Pacific Partnership, an ultimately law-creating treaty that, rather than being driven by the priorities of the legislature Constitutionally-tasked with making law, is instead being negotiated in secret by the executive branch. Even if the TPP were to turn out to be the most wonderful treaty affecting US law in the most wonderful of ways, it fails utterly as an example of representative democracy, and the legal liabilities it stands to create are therefore of little legitimacy.

This phenomenon of having the executive branch negotiate the US into treaties that will require changing its laws in order to comply in a way that Congress was unwilling to do legislatively on its own political initiative is known as “policy-laundering.” These treaties force Congress to either amend its laws — at times even those with criminal sanctions — or allow the US to be in breach of the treaty and subject to economic sanctions.

But even legislating through Congress can get messy, and we saw much of the mess illustrated this week with reference to the NSA. Of particular note, the House of Representatives narrowly defeated an attempt to defund the NSA’s data-collection practices, due at least in part to the apparent change of position of some representatives’ earlier stance on the Patriot Act and the technological and cultural (as well as legal and potentially political) illiteracy of other lawmakers. But Techdirt also reports that further attempts to declaw the NSA are continuing to be mounted.

The importance of these attempts succeeding cannot be overstressed. Knowledge is power, and government knowledge of every detail of everyone’s lives, as documented by their digital paper trail, gives governmental organs way more power over people’s lives than they are constitutionally entitled to. Certainly there are times when the government may justly need information in order to legitimately prosecute. But when governmental appetite for information is insatiable, unchecked access to information leads to its own harm. For a horrific example, see last week’s post on the DOJ and FBI admitting they may have abused hair analysis, itself based on a form of private information, to wrongfully convict hundreds or even thousands of innocent people.

And when we see the government ruthlessly chase down people who spoke up to expose its abuses, threatening all who might offer refuge and mercilessly prosecuting those it catches, we are reminded why governmental police power must have limits, even in the digital world.

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