Regulating speech » Digital Age Defense

Newsman’s privilege and blogging

Judicial process, Regulating speech No Responses »

Apr 092013

I found myself blogging about journalist shield law at my personal blog today. As explained in that post, an experience as the editor of the high school paper has made newsman’s privilege a topic near and dear to my heart. So I thought I would resurrect a post I wrote a few years ago on the now-defunct blog I kept as a law student about how newsman’s privilege interacts with blogging as food for thought here. Originally written and edited in 2006/2007, with a few more edits for clarity now.

At a blogging colloquium at Harvard Law School ¹ Eugene Volokh gave a presentation on the free speech protections that might be available for blogging, with the important (and, in my opinion, eminently reasonable) suggestion that free speech protections should not be medium-specific. In other words, if these protections would be available to you if you’d put your thoughts on paper, they should be available if you’d put them on a blog. Continue reading »

The PayPal Problem – a comment on intermediary liability

Analysis/commentary, Intermediary liability, Regulating speech 1 Response »

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 »

EMI sues Ireland for not passing law to its liking

Analysis/commentary, Criminal IP Enforcement, Regulating speech No Responses »

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 »

In loco parentis locus

Analysis/commentary, Regulating speech No Responses »

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 »

Twitter Joke Trial at High Court

Examples, Regulating speech No Responses »

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.

South Korean indicted for retweeting North Korean tweets

Examples, Regulating speech No Responses »

Feb 052012

The New York Times has a report about a South Korean man who has been indicted for having retweeted tweets from the North Korean government. The charge accuses Park Jung-geun of violating the “National Security Law,” which bans “acts that benefit the enemy,” although without defining what those acts might be.

Detectives raided Mr. Park’s photo studio in eastern Seoul in the fall. They later interrogated him several times for resending such North Korean propaganda postings as “Long Live Kim Jong-il!”

…

In an interview in December, Mr. Park said his Twitter posts were meant to lampoon the North Korean regime. Mr. Park, a member of the Korean Socialist Party, said he supported its platform, which criticized the Pyongyang government’s human rights policy and its hereditary transfer of power.

“It was humiliating and ludicrous to have to wear a straight face and explain all my jokes to the detectives,” said Mr. Park, who faces up to seven years in jail if convicted.

Prosecutors charged that joke or no joke, Mr. Park’s Twitter account served as a tool to spread North Korean propaganda.

The article notes that prosecutions under this law have increased since the current administration took power.

In 2010, 151 people were interrogated on suspicion of violating the law, up from 39 in 2007. The number of people prosecuted on charges of pro-North Korean online activities increased to 82 in 2010 from five in 2008, according to government data submitted to lawmakers. During the first 10 months of 2011, the police deleted 67,300 Web posts they believed threatened national security by “praising North Korea and denouncing the U.S. and the government,” a sharp rise from 14,430 posts in 2009.

…

South Korea still blocks its citizens’ access to North Korean Web sites, though North Korea has recently gone around the firewalls by using Twitter accounts. The South’s policy has left the delivery and interpretation of North Korean announcements in the hands of a relatively small group of officials and journalists with special access to North Korean media.

Preventing user sharing

Analysis/commentary, Privacy from private parties, Regulating speech No Responses »

Feb 022012

I’ve written before about Netflix petitioning Congress to modify the Video Privacy Protection Act (VPPA) to allow for users to easily share what they are watching to social networks. Right now users can easily share what books they are reading and what music they are listening to, but because the videos they stream may be covered by this videotape-era law, Netflix is concerned it could run afoul of it if it allowed for similarly easy sharing.

But as Susan Crawford notes in this article, Netflix’s attempt to harmonize privacy law vis a vis the sharing of what people are streaming with what they are reading or listening to may be backfiring: harmonization may well occur, not by making it easier to share video but rather by making it harder to share those other media too. Continue reading »

Bangladeshi faces sedition charge over Facebook post

Examples, Regulating speech No Responses »

Jan 232012

Agence-France Press is reporting that a Bangladeshi high court has ordered police to prosecute Jahangirnagar University teacher Ruhul Khandakar for sedition as a result of a comment made on Facebook. The comment, since deleted, was “[Famous Bangladeshi filmmaker] Tareq Masud died as a result of government giving licence to unqualified drivers. Many die, why does not [Prime Minister] Sheikh Hasina die?”

He was also sentenced to six months in jail for contempt of court after he failed to respond to repeated summonses to explain a Facebook posting. The article reports Khandakar has been studying in Australia and these proceedings happened without him.

It also cites a local lawyer saying that this is the first time a Bangladeshi has been ordered to be jailed and tried for sedition over comments made on a social networking site.

India continues to flirt with web censorship

Examples, Intermediary liability, Regulating speech No Responses »

Jan 132012

Last month Kapil Sibal, acting telecommunications minister for India, floated the proposition that social networks actively filter all content appearing on their systems. Now comes news that a judge in New Delhi also thinks web censorship appropriate. From the New York Times:

The comments of the judge, Suresh Kait, came in response to a lawsuit, filed by a private citizen in the capital, New Delhi. The suit demands that Internet companies screen content before it is posted on sites like Facebook, Google or Yahoo, that might offend the religious sentiments of Indians. A related criminal case accuses the companies — 21 in all — of violating an Indian law that applies to books, pamphlets and other material that is deemed to “deprave or corrupt.”

A trial court in New Delhi on Friday ordered that summons be served in the criminal case to officials at all 21 companies at their foreign headquarters’ addresses.

…

Google and Facebook refused to comment on the case, except to say they had filed a motion in the New Delhi High Court to dismiss the criminal case.

Their motion will be considered on Monday. Continue reading »

Watching the watchers

Examples, Regulating speech No Responses »

Jan 062012

Public photography is an issue that frequently appears on this site because it’s a real example of technology-enabled speech that all too often authorities try to prevent. These attempts are often egregious and never balanced out by whatever policy reasons are ostensibly behind them. But they are particularly odorous when these prohibitions are enforced on people using photography to record the power of the police.

What’s especially insidious is the logic so often used for it, that recording people acting in public — or, more specifically, agents of the state acting in public under the color of the authority granted by the state — might somehow violate a privacy interest. Continue reading »

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