Back in December I traveled to Pasadena to observe the oral argument in the en banc appeal of Google v. Garcia, a case I filed an amicus brief in on behalf of Techdirt and the Organization for Transformative Works. (Actually, I ultimately wrote two briefs, one in support of the en banc appeal being granted and one as part of the appeal once it was.) After the hearing I wrote a synopsis of the arguments raised during the appeal on Techdirt (originally titled, “Celine Dion And Human Cannonballs“), which I’m now cross-posting here:
On Monday I filed an amicus brief in a case sometimes referred to as “Garcia v. Google.” The case is really Garcia v. Nakoula, with Garcia being an actress who was duped by the defendant to appear in a film he was making – a film that, unbeknownst to her, turned out to be an anti-Islam screed that led to her life being threatened by many who were not happy with its message and who sought to hold her accountable for it.
There’s little question that Nakoula wronged her, and likely in a way that the law would recognize. Holding him accountable is therefore uncontroversial. But Garcia didn’t just want to hold him accountable; Garcia wanted all evidence of this film removed from the world, and so she sued Google/YouTube too in an attempt to make it comply with her wish.
Garcia is obviously a sympathetic victim, but no law exists to allow her the remedy she sought. In fact, there are laws actively preventing it, such as 47 USC Section 230 and the Digital Millennium Copyright Act (DMCA), and, believe it or not, that’s actually a good thing! Even though it may, in cases like these, seem like a bad thing because it means bad content can linger online if the intermediary hosting it can’t be forced to delete it, such a rule helps preserve the Internet as a healthy, robust forum for online discourse. It’s really an all-or-nothing proposition: you can’t make case-by-case incursions on intermediaries’ statutory protection against having to take down “bad” content without chilling their ability to host good content too.
And yet that is what happened in this case when Garcia sought a preliminary injunction to force Google to delete all copies of it from YouTube (and prevent any new copies from being uploaded). Not at the district court, which denied her request, but at the Ninth Circuit Court of Appeals earlier this year when two out of three judges on the appeals’ panel chose to ignore the statutes precluding such an order and granted it against Google anyway.
Google has now petitioned for the Ninth Circuit to review this decision, and a few days ago nearly a dozen third parties weighed in with amicus briefs to persuade the court to revisit it. Most focused on the method by which the court reached its decision (i.e., by finding for Garcia a copyright interest in the film unsupported by the copyright statute). I, however, filed one on behalf of two intermediaries, Floor64 Inc. (a/k/a Techdirt.com) and the Organization for Transformative Works, intermediaries who both depend on the statutory protection that should have prevented the court’s order, arguing that by granting the injunction in contravention of these laws preventing it, the court has undermined these and other intermediaries’ future ability to host any user-generated content. As the saying goes, bad facts make bad law, and tempted though the court may have been in this case with these facts, if its order is allowed to stand the court will have made very bad law indeed.
For more detailed analysis read the brief and the TechDirt article about it. Additional amicus briefs and relevant case filings are also archived here, and Eric Goldman has a nice summary of the briefs as well.
This past week California passed a law requiring website owners to allow minors (who are also residents of California) to delete any postings they may have made on the website. There is plenty to criticize about this law, including that it is yet another example of a legislative commandment cavalierly imposing liability on website owners with no contemplation of the technical feasibility of how they are supposed to comply with it.
But such discussion should be moot. This law is precluded by federal law, in this case 47 U.S.C. Section 230. By its provisions, Section 230 prevents intermediaries (such as websites) from being held liable for content others have posted on them. (See Section 230(c)(1)). Moreover, states are not permitted to undermine that immunity. (See Section 230(e)(3)). So, for instance, even if someone were to post some content to a website that might be illegal in some way under state law, that state law can’t make the website hosting that content itself be liable for it (nor can that state law make the website delete it). But that’s what this law proposes to do at its essence: make websites liable for content others have posted to them.
As such, even aside for the other Constitutional infirmities of this law such as those involving compelled speech for forcing website owners to either host or delete content at someone else’s behest (see a discussion from Eric Goldman about this and other Constitutional problems here), it’s also constitutionally pre-empted by a prior act of Congress.
Some might argue that the intent of the law is important and noble enough to forgive it these problems. Unlike in generations past, kids today truly do have something akin to a “permanent record” thanks to the ease of the Internet to collect and indefinitely store the digital evidence of everyone’s lives. But such a concern requires thoughtful consideration for how to best ameliorate those consequences, if it’s even possible to, without injuring important free speech principles and values the Internet also supports. This law offers no such solution.
While originally I intended this blog to focus only on issues where cyberlaw collided with criminal law, I’ve come to realize that this sort of analysis is advanced by discussion of the underlying issues separately, even when they don’t implicate either criminal law or even technology. For example, discussions about how copyright infringement is being criminally prosecuted is aided by discussion on copyright policy generally. Similarly, discussions about shield laws for bloggers are advanced by discussions of shield laws generally, so I’ve decided to import one I wrote recently on my personal blog for readers of this one:
Both Ken @ Popehat and “Gideon” at his blog have posts on the position reporter Jana Winter finds herself in. To briefly summarize, the contents of the diary of the alleged Aurora, CO, shooter ended up in her possession, ostensibly given to her by a law enforcement officer with access to it and in violation of judicial orders forbidding its disclosure. She then reported on those contents. She is not in trouble for having done the reporting; the problem is, the investigation into who broke the law by providing the information to her in the first place has reached an apparent dead end, and thus the judge in the case wants to compel her, under penalty of contempt that might include jailing, to disclose the source who provided it, despite her having promised to protect the source’s identity.
In his post Gideon make a compelling case for the due process issues at stake here. What’s especially notable about this situation is that the investigation isn’t just an investigation into some general wrongdoing; it’s wrongdoing by police that threatens to compromise the accused’s right to a fair trial. However you might feel about him and the crimes for which he’s charged, the very fact that you might have such strong feelings is exactly why the court was motivated to impose a gag order preventing the disclosure of such sensitive information: to attempt to preserve an unbiased jury who could judge him fairly, a right he is entitled to by the Constitution, irrespective of his ultimate innocence or guilt, which the police have no business trying to undermine.
Ken goes even further, noting the incredible danger to everyone when police and journalists become too chummy, as perhaps happened in the case here. Police power is power, and left unchecked it can often become tyrannically abusive. Journalists are supposed to help be that check, and when they are not, when they become little but the PR arm for the police, we are all less safe from the inherent danger that police power poses.
But that is why, as Ken and Gideon wrestle with the values of the First Amendment versus the values of the Fifth and Sixth the answer MUST resolve in favor of the First. There is no way to split the baby such that we can vindicate the latter interests here while not inadvertently jeopardizing these and other important interests further in the future.
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.
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.
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.
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.
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.
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.
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.