Turns out, America does love freedom more than other countries

Apparently, Europeans see the right to privacy as a fundamental right, while Americans tend to value freedom more:

http://www.nytimes.com/2010/02/28/weekinreview/28liptak.html?ref=weekinreview

This raises interesting questions about how accommodating ISPs should be, and whether they are responsible for adapting to these regional differences in opinions of fundamental rights. Personally, I don't think it's so much of a policy issue as it is a business model issue - you tailor you product to your market. However, others may disagree.

Week 8: Fourth Amendment: Third Party Doctrine – Emails, Text Messages & Other Personal Data

Technological innovation benefits individuals by providing them with digital tools that make their daily lives easier. However, those same technologies often times equip the Government to access private information about individuals. For example, Americans conduct an increasing proportion of their daily lives in a digital format, engaging in online transactions that involve confidential data such as personal banking, and storing large amounts of personal data, such as calendars, photographs, contact information and diary entries either on personal computers or online using services such as Flickr and Google Docs. Does the Fourth Amendment offer any protection for information stored online? If not, how robust are statutory protections for this kind of information? Questions we will consider in this class include: Is it reasonable to expect that the police will access your Facebook account in the course of conducting their investigations? Can the Government obtain access to emails stored online? Must Google give law enforcement access to its users’ search histories? Do Fourth Amendment protections cover text messages?

Required readings:

Limitations of the Fourth Amendment and Statutory Solutions:

• Smith v. Maryland, 442 U.S. 735 (1975).
• Orin S. Kerr, A User’s Guide to the Stored Communications Act, and a Legislator’s Guide to Amending It, 72 Geo. Wash. L. Rev. 1208 (2004), Part I only.
• Solove & Schwartz, Privacy, Information, and Technology, pp. 140-149, 156-158.

Email:

• Warshak v. United States, 532 F.3d 521 (6th Cir. 2008), pp. 9-15.

IP Addresses & URLs:

• United States v. Forrester, 512 F.3d 500 (9th Cir. 2008).

Cell Phone Tracking:

• Declan McCullagh, Feds Push for Tracking Cell Phones, CNet (Feb. 11, 2010).

Text Messages:

• Adam Liptak, Supreme Court Takes Texting Case, N.Y. Times (Dec. 14, 2009).

Social Networking Sites:

• Stephanie Perry, Can Facebook Lead to Your Arrest?, Daily Free Press (Dec. 26, 2008).

RFID, "Reasonable" Expectations of Privacy, and the Online Disconnect

In looking at the balance between privacy and security, and the resulting constitutional questions that arise from the somewhat invasive RFID technological advancement, it’s necessary to look at the spirit of the freedom from unreasonable search and seizure protection. The Dalal article focuses on whether or not attaching RFID technology to the underside of a car should be legally considered a “search” (it clearly is not a seizure, unless one makes the stretch that it is a seizure of personal information—but this goes against a lot of precedent). The evidence and precedent also seems to support that keeping track via satellite of the location of a car on a public road is not a search.

The more intriguing and potentially problematic discussion then, is about the word “unreasonable.” Cases like Knotts and McIver define “reasonable” as an expectation of privacy that society would consider reasonable—which means very little substantively. Knotts also set the precedent that technology that enhances police’s natural senses and ability to investigate or monitor is constitutionally valid. At what point does this standard stop working though? If someone is walking around, engaging in some activity in their backyard, which is surrounded by a six-foot tall solid fence, do they have an expectation of privacy? Does an officer’s ability to use intrusive technology depend on his height, since if he is 6’6”, he would be able to see over the fence anyway, meaning the technology could be considered an enhancement of his senses? What about someone who is doing something in his home behind tinted glass? Where should the line be drawn regarding this expectation of privacy?

I think allowing society to dictate the balance between privacy and security has the potential to be a dangerous thing, especially in the age of terrorism that we live in today. National safety has become more of a pressing issue than ever before in the minds of Americans. The widespread fear of terrorism pushes the balance towards prioritizing safety over privacy, and without a normative baseline for maintaining a certain level of privacy, privacy may be increasingly sacrificed in favor of security.

In an online context, it seems to me that people assume their activity is even more private than in the analog world. I don’t think this precedent maps very well onto its digital counterpart, as most people expect a significant amount of privacy within their home, on their computer, while the government sees the online world as a space that extends into a public arena.

The Death and Resurrection of Privacy

Most the readings we have this week deal with the issue of “reasonableness” when determining whether the right to privacy has been violated. The cases over privacy that have come before the Supreme court often dealt with whether or not law enforcement officials conducted their searches reasonably. Solove and Schwartz tell us that instances of infringement upon personal space are decided on a case-by-case basis. While this detail is presented in context of what it takes for a search warrant to be granted, it also highlights the underlying assumptions that we have about personal space. There is a deep-rooted sentiment that we are each allowed a personal sphere under which no one can penetrate unless there is a compelling reason. However, the technological world is quickly and forcefully challenging these assumptions; whether it’s RFIP chips that contain personal information or password-breaking software, we are now acutely aware of how vulnerable we are in the digital age. Within Dalal’s discussion of the Kyllo decision, he briefly muses about whether the expectation of privacy is a function of whether people are aware of technological capabilities. This aside is quite chilling – does this mean that as soon as one is aware of information gathering software, he is now required to take measures against it, or at the very least acknowledge that he might eventually be a victim of it? Should we accept that these breakthroughs in surveillance warrant a radical change of our understanding of privacy, or is privacy an antiquated concept that hears its death knell?

In reply, to my own questions, I believe that it is up to the citizenry to equip themselves. People now have a compelling interest to inform themselves of threats against their personal security, so I predict that the best response is technological in nature as well. More powerful security tools and proxy shielding software will be in demand, creating a market that will only grow larger as technology improves. This is not to say that law enforcement will be left out to dry, since the Fourth Amendment would still allow for reasonable searches; rather, these measures will solidify the Fourth Amendment protection while keeping people from becoming innocent victims of unwarranted information-gathering.

Cyber Showdown: Balkin v. Volokh

This blog post is admittedly a cop-out, since I can't comment sensibly on the readings until I've read them first. Despite being so swamped with midterms and the like that I foolishly put off the readings for tonight, I did attend last night's free-form conversation--compliments of the Federalist Society--between Jack Balkin and Eugene Volokh, colleagues in the blogosphere and legal scholars of repute. Just about everything they discussed was thought-provoking (and often borderline dystopian), but I'll limit myself here to the connections they drew explicitly to privacy, and implicitly, I suppose, to the 4th Amendment.

At the outset, Volokh admitted to being more concerned about the Internet's implications for defamation than for privacy. That's why the first half of the conversation turned on Section 230 and the immunity from torts redounding to online platforms that unwittingly play host to libelous comments (though not to copyrighted-protected material, apparently, as the panelists were quick to point out).

The transition to privacy came when it was Balkin's turn to prognosticate what ambiguities or downright dangers he saw "coming down the pike." Rhetorically, Balkin wondered aloud if we should get used to a world where there isn't much privacy, to which Volokh retorted that we need to be clearer about what we mean by privacy. When challenged, Balkin specified that there are three varieties of privacy: vocational, transactional, and mundane/intimate. I don't take much of an issue, intuitively, with the thrust of the exchange thereafter, namely that it could conceivably be beneficial (for the individual, company, society -- whichever!) to sacrifice impersonal details for heightened productivity or a better bargain. The concrete example that Balkin and Volokh bandied about a few times was the now-existing practice of coupons being geared to individual shoppers, based on their habits and demographics; where does the shopper get off on objecting to this practice, now that he no longer has to spend time sifting through all the coupons just to find the ones appealing to him? Another example, brought up by Balkin, was the premise in Minority Report that an individual might be best-served in knowingly forfeiting his private information to an outside body, in exchange for mercantile deals.

For some time, especially when the discussion veered toward the hypothetical and fictitious, Balkin and Volokh overlooked the circumstance when it's not in somebody's interest to relinquish information, or when that somebody isn't even aware of it happening. The panelists were by and large preoccupied with classifying privacy and debating whether it matters to the compromised individual if it's a neighbor viewing the information, a benevolent (...) corporation, or the government even. Another complication, with reference to privacy, is that new technologies and applications thereof often cut both ways, providing gains to some and hardships to others.  Take Google Buzz, which endangered a woman who didn't know what she was revealing--does that mean anything, legally?--by alerting her abusive husband to her whereabouts. In the same breath, however, Balkin touched on another application that apparently behooves gay men, whatever the threat is to their privacy, by signaling their coordinates to other gay men in the hunt for a hookup.

But of all the colorful examples alluded to by Balkin and Volokh, the one I left thinking about the most was the latter's at the very end: PleaseRobMe.com. This is a service that epitomizes the double-edged nature of giving up one's privacy.  Simultaneously, it informs would-be burglars where potential targets are located, while also educating their overly forthcoming residents about the perils of revealing too much on Twitter. 

While it's comforting that someone has taken it upon himself to act as an intermediary between the collectors and generators of (particularly sensitive) data, I question why there need be an intermediary in the first place. In those instances where there isn't an overriding concern for security, to the detriment of privacy in that binary of values, might it be helpful (or even practicable) for someone to have recourse to a database that lets him view all the data gathered on him? Would corporations be exempt from this, or should the government--which itself would be bound to such a regime of transparency--force their hand via legislation? I ask all this only because I'm just beginning to familiarize myself with the movement in this direction (i.e., Operation Sunlight, which I believe Lawrence Lessig is associated with), after hearing about such a government-run database taking effect in Estonia.

I'm looking forward to tonight, when I'll see if any of the above has a bearing on the readings. (And, as fun as it was to write this blog post, when I'll actually get around to starting my midterm paper...)

The tensions in the Fourth Amendment ride on the balance between "the protection of individual citizens' privacy and the necessity of the government to discover evidence and prosecute crimes" (Trepel 128) and as technology capabilities increase over time, that balance continues to be pushed and pressured. It is understandable that the interpretation of the Fourth Amendment must change as the technology of society increases, but what fears and concerns me the most about these cases is the implications of these changes. In the reading about RFIDs and the U.S. v. Garcia case, there were multiple references to technology being used in the future as tools for mass surveillance not just of criminals but of ordinary individuals without the use of a warrant. The GPS and RFID are tracking devices that are used commercially by individuals--the first to find directions on roads and the second to help in supply-chain logistics and EZPasses--and if they are ruled by the courts as instruments whose uses do not violate the Fourth Amendment because there is no physical trespass of the individual, then what is it that prevents the tracking function of these devices from becoming devices of searching in the future?

I see this issue of defining which technologies can be used constitutionally and with or without a warrant as mapping directly onto internet use online. Society feels strongly against tracking the activity of individuals online, and if the tracking of GPS and RFID is decided to be within the realms of the Fourth Amendment in the offline world, then I am nervous about a similar kind of tracking becoming constitutional online as well. The push for having RFID put into passports and driver licenses in order to prevent them from being duplicated pushes the balance of the Fourth Amendment as described above to obtaining evidence to prosecute crimes at the sake of individuals' privacy. Will there soon be online technologies that allow for government officials to be able to openly track the websites that individuals visit in order to safeguard individuals from online crime? As mentioned by several blog posts, it is important that society remember the Katz test that states that individuals essentially should feel secure in their privacy when they expect to be private. Individuals value their safety and want the government to have means in which to track criminals, but one of the largest components of safety is the ability to remain private. That second component cannot be forsaken and must be remembered as the Fourth Amendment continues to be interpreted in the changing society.

Changing conceptions of technology

A key ruling on issues of privacy is the Katz decision, stating that the 4th amendment protects people, not physical places. While this is an easy standard to follow, what's more complicated to apply to the online age is the stipulations about the reasonable expectation one can have about privacy.

"For the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected. "

In the modern age, what does a person who uses a phone, laptop, and GPS "knowingly expose"? The ramifications, of course, are significant, for anything that is knowingly exposed loses a degree of protection. In the analog world, it was fairly obvious to anyone doing anything whether their act was public or private. If people could see you or hear you, it was not private. In the digital world, however, things become more complicated.

For example, an 80-year old woman who uses various technologies may have no idea of what digital traces she is leaving behind, or how public her online activity may be. A savvy 20 year old, on the other hand, might have a much more accurate understanding of what others, including the government, can easily figure out about his activity. Is it reasonable to say that since the 20 year old might have "knowingly expose[d]" more information, the government could use such information against him, while it could not bring that evidence against the 80 year old since she was unaware of it? Furthermore, how can you ever prove whether someone knew how public or private their activity was?

With technology the way it is now, this standard seems more useless than ever. The way technology is constantly changing and Google is constantly changing how it tracks almost every aspect of your life, how can someone be expected to know just how public or private his actions are? Would it make more sense for the government to establish a more concrete, objective standard for determining what is public and what is private?

As the situation currently stands, the government keeps having to play catch-up with new technologies, ruling whether each new technology which is used to collect information about people is acceptable or not, and under what circumstances. Perhaps getting rid of the issue of the privacy one expects and inserting standards of the privacy the government expects you to have could help clarify matters. The GPS example strikes me as an area where this would be especially useful, since the current laws provide little guidance about how to view a GPS device placed on someone's car by the police. It is clearly somewhere between a phone tap and a police car tracking the person physically, yet the decision to make the GPS tracker illegal left me unconvinced, since the truth is that there are no real laws on the issue, and the court simply decided that a police car could never track a car as well as a GPS could.
The question, of course, would then be what exactly these new guidelines for defining privacy for the 21st century would be. To that, honestly, I have no good answer, except to say that a person or society's expectations - which are subjective and ever-changing - should not be a factor.

The Katz Ruling is Key

In approaching privacy issues, we need to return to the precedent set in Katz, that the test for privacy is that an individual must have a subjective expectation of privacy and that the rest of society would deem that expectation to be reasonable. As such, as an individual is relaxing in his home, he is entitled to privacy and that privacy is protected. The Katz ruling and status as precedent indicates that we, as a society, respect an individual’s right to privacy and hold it as paramount, regardless of whether we physically intrude on his space. Following this principle, intrusions ought only be acceptable when an individual acquiesces and hands over his right to privacy or when the rest of society, as determined by a judge and granted through a warrant, decides that an individual’s expectation to privacy is unreasonable.

I feel like in most cases RFID/GPS tracking of individuals on a massive scale by the government is unacceptable as it fails both parts of the Katz test. Implicit in the Katz test and the Fourth Amendment is that everyone *should have the ability to have some privacy*. With mass scale usage of RFID/GPS tracking, this ability is squashed. Beyond a few possible and highly debatable cases which I am not completely decided on, like tracking criminals in a correctional facility (there may be some credence to the point that they lose some societal acceptance of their privacy), with the regular GPS tracking and following of all individuals or RFID chips implanted into passports or even onto people, people lose all possibility of privacy to begin with, a right which we have already established is important. No longer is the individual relaxing in his home protected - with GPS/RFID tracking, an officer driving by knows that he is in there and who he is with. Even in the aforementioned possibly acceptable cases of surveilling criminals, these individuals have, to a degree, already lost a reasonable societal expectation to privacy - preemptively implanting these devices into ordinary people’s lives is wholly unacceptable under Katz’s test.

The Katz’s precedent surrounding the Fourth Amendment indicates that we value an individual’s right to privacy assuming one follows these guidelines, even at the possibility of slowing down law enforcement - unless an individual acquiesces and gives up his right to privacy, the government must obtain a warrant granted by a judge to show they have probably cause and a right to search and seize. This was not apparent with the Garcia case and especially not with the Andrus case. Though Andrus’ actions are reprehensible, the police investigated him in a way which violated his rights much like the police who investigated Katz did; Andrus 1-expected privacy as evidenced by his password protection of his files 2-neither agreed to allow a search nor received any warrant for a search of his computer. The police had a compelling case for probable cause, but failed in obtaining a warrant - no individual, even the officer of the law, has the right to make these sort of decisions at his own discretion.Though Katz’s father allowed for a search of his home, he had no access to the computer and as such had no real authority over the computer and therefore could not give up the computer (he had no ability to acquiesce as that is his son’s right). I think in mapping the present law onto computers, which are wildly complicated in regards to what ‘container’ is entitled to privacy - the whole computer or each individual file or a partition etc - the onus was on the police to, at least, ask the father if he had access to the computer before they opened it up. That the courts defended the police officers under the argument of that Andrus’ father had apparent authority and the police were acting reasonably undermines the Katz principle and the spirit of the Fourth Amendment entirely - it is a ‘ends justify the means’ idea, one which is unacceptable given our essential right to privacy. Andrus ought to be locked away, but the police did it in such a manner which endangers every individual’s vital right to privacy.

Question: The Trulock ruling confuses me; what does an officer need in order to access an individual’s files on a computer - do they get a warrant for the entire computer, or specific partitions, or specific files, etc?

*I edited the portion with asterisks because the language originally was very unclear*

When it comes to privacy, expectations matter.

“Because the Fourth Amendment protects people rather than places, its reach cannot turn on the presence or absence of a physical intrusion into any given enclosure.” - Katz v. United States

One Catch-22 with innovation and the digital age is that technology inevitably outpaces the law. Tracking systems like GPS allow government officials to follow people in their cars or homes easily; new amplification technologies enable police to overhear or view previously unmonitored areas; and sophisticated electronic hacks permit authorities to override even password-protected databases. While it might be nice if we were to regulate all of these areas, legislative remedies are simply too narrow and too belated to offer any real efficacy against these changes.

The risk then, it seems, is that our public areas become near infinite. How, when search engines catalogue digital information near-ubiquitously, can we have any expectation of electronic privacy? How can we expect any privacy protection when, as we extend wires from our homes to other homes, our spaces become less and less confined? If you’re Justice Black, perhaps you believe that we can’t have any defenses; we can only protect “tangible things with size, form, and weight.”

Such a reading, however, of the Fourth Amendment, nullifies its very Constitutional purpose, affronting the intent of the Framers. From our cell phone relays to our wifi connections, we unquestionably emit far more public signals in the digital age. But that doesn’t mean we drop our Constitutional liberties at the gates of the modern era! As Justice Brandeis says in the Olmstead dissent, “in the application of a Constitution, our contemplation cannot only be of what has been, but of what may be.” Let us not forget, for instance that “in plain view” means not just that something is “viewable,” but that it is plainly visible.

Where then do we draw the line between modern public and private space? Because making this distinction will change so much based on the type of the technology, Katz gets it right: we must look toward the people involved, specifically whether or not the people have a reasonable expectation of privacy. For example, as Trulock attempts to make clear, whenever a person establishes a digital password, it is clear that they are trying to establish privacy. It seems that we can distinguish between my password-protected Gmail files and my posts on a public forum like Blogspot—I certainly have an expectation of privacy in the former case where I do not in the latter. Thus, shielding my Gmail account from unwarranted searches is more important than protecting my Blogspot posts.

In Katz, Justice Harlan tries to establish a two-prong test for privacy: (1) governmental action must contravene an individual's actual, subjective expectation of privacy; (2) that expectation of privacy must be reasonable, in the sense that society in general would recognize it as such. The Supreme Court has since (in my opinion, wisely) adopted this test.

In the modern era, when we can never truly protect ourselves from technological innovations and breaches, we need to look toward areas where we societally expect to have privacy rather than just those areas where we can physically secure. When no combination of Firewalls and passwords can ever protect our private spaces from others, we need to look towards the law as our last safeguard!

Perfection vs. Imperfection: A Logical Contradiction

In his dissenting opinion in Illinois v. Carballes, Justice Souter remarks that an “infallible dog is a creature of legal fiction.” Therefore, he posits, conducting a dog sniff during a routine traffic stop constitutes an illegal search unless it is backed by a warrant. The significant risk of false positives and the ensuing illegitimate search is an unacceptable threat to the Fourth Amendment. In Souter’s opinion, the imperfection of the tool renders it unconstitutional without a warrant.

In State v. Jackson, the Washington Supreme Court ruled that placing a GPS device on a car requires a warrant. The court acknowledges that the GPS device “provides a technological substitute for traditional tracking” which is both more reliable and more resource-efficient than the nearly impossible task of “maintaining uninterrupted 24-hour surveillance for approximately two and a half weeks.” However, it is the very ease and efficiency of using the GPS device which makes it so problematic. In the court’s opinion, the perfection of the tool renders it unconstitutional.

These two seemingly contradictory theories highlight the importance of maintaining the presumption that any act other than routine observation constitutes a search and seizure, thus requiring a warrant. Acts that are border-line at best, and hinge upon the perfection or imperfection of the tool used, most likely constitute searches and necessitate warrants. It should come as no surprise that the convoluted legal reasoning necessary to rationalize the expansion of police power often doubles back on itself and creates logical contradictions not easily resolved.

In the digital age, as technology improves, it becomes increasingly tempting to allow intrusive and sweeping searches on the grounds that no rules are technically broken. But this is where it is helpful to step outside of the complex legal framework and look objectively at the cases. A dog sniff is a search because it involves using a police instrument (a dog) to ascertain the contents of an individual’s hidden possessions. Similarly, attaching a GPS device to a car appears to be more significant than mere police “tailing” as it entails a constant and precise record of that car’s whereabouts through aid of an electronic device. A dose of common sense is often more useful than the most sophisticated and complicated legal arguments. In reviewing conflicts between technology and privacy, the spirit of the Fourth Amendment must be preserved above all else.

Week 7: Fourth Amendment: Unreasonable Search – Computer Searches & Locational Tracking

This class will introduce the Fourth Amendment, and the difficulties courts have faced in balancing security and privacy concerns. What does privacy really mean in the digital age? Should the Government be able to search the computer you use at work? Can police monitor your movements using a GPS device? Should they be able to track you using your cell phone or the RFID chip in your driver’s license? Given that privacy is always in conflict with countervailing interests such as the free flow of information, detection of crime and national security, we will focus on the various balances that must be struck. We will examine the Supreme Court’s struggle to apply Fourth Amendment doctrine to new technologies, and will ask whether the Fourth Amendment is able to remain relevant in the digital era.

Required readings:

The Fourth Amendment technology cases:

• U.S. Const. Amend. IV.
• Solove & Schwartz, Privacy, Information, and Technology, pp. 77-90 [but skip pp. 81-83, subsections (g), (h) and (i)], 95 (start at Katz)-100, 113 (start at Place)-114 (stop at Caballes), 117-118 (stop at Greenwood), 132 (start at Kyllo)-138.

GPS Tracking:

• Wikipedia on GPS (optional).
• Solove & Schwartz, Privacy, Information, and Technology, pp. 131-132.
• United States v. Garcia, 474 F.3d 994 (7th Cir. 2007).

RFID:

• Reepal S. Dalal, Chipping Away at the Constitution: The Increasing Use of RFID Chips Could Lead to An Erosion of Privacy Rights, 86 B.U. L. Rev. 485 (2006), Part I only (pp. 487-491).

Computer Searches:

• Solove & Schwartz, Privacy, Information, and Technology, pp. 158-165.
• Samantha Trepel, Digital Searches, General Warrants, and the Case for the Courts, 10 Yale J.L. & Tech. 120 (2008), Parts I, II and III (optional).

Horror Stories of Apple

Cracked.com is a website that presents little-known facts and interesting facts in a sarcastic, humorous way. Still, despite the presentation, the articles are usually well-researched and backed up with sources. This article, which came out yesterday, details some of Apple's shocking business practices, some of which I felt were relevant to our discussions of civil liberties and net neutrality.

http://www.cracked.com/article_18377_5-reasons-you-should-be-scared-apple.html

Anti-Net Neutrality

I think this net neutrality debate is really fascinating. At first, I saw the YouTube video praising net neutrality and was very much on board with keeping the Internet as open as possible. Net neutrality seems like a great concept in order to allow everyone to access as much information and knowledge as possible. I was shocked at how quickly I switched sides upon reading more. It seems clear to me that any net neutrality legislation would be absolutely unconstitutional. In Goldstein’s essay, he makes convincing points through the use of newspaper analogies, suggesting that no one would be on board with the government restricting the types of business practices a newspaper could employ. While net neutrality supporters invoke a need to protect the First Amendment, so that all sorts of speech on an open internet can reach a national audience, it is those against net neutrality who have the Constitution on their side. The government cannot tell a private corporation how to run their business because that would be a violation of private speech. For those that invoked the argument about cable television, the comparison seems weak, as most cable providers were in the position of being local monopolies, leaving viewers with no choice—a very different situation than the competitive market that BSPs inhabit.

Furthermore, the entire existence of this unnecessary debate appears to be the result of paranoia. There is very little evidence that any BSPs plan to restrict access to the Internet, and even if they did, in a free market economy where competitors are virtually omnipresent, why would they? Surely, any BSP that enacted such measures to the chagrin of their consumers would experience a mass exodus and loss of revenue.

Some sort of compromise on the issue of net neutrality seems reasonable, as it is certainly in the public interest to retain access to an open Internet, but many issues need to be addressed before any sort of legislation is set forth. These include: Why BSPs are being singled out, and not search engines or browsers (a question that Goldstein put forth)? How do we address the ambiguity of a phrase like “reasonable network management practices”? Why the sudden distrust of BSPs after all the beneficial progress they have provided in delivering more access and information to the public in the past two decades?

I think a common thread that ties together the two issues—net neutrality and spam regulation—is how much the government can interfere with speech when it has a pretty good and reasonable reason for doing so. Nobody likes spam, and nobody wants their internet censored and biased in strange ways. However, from a constitutional standpoint, what does it mean if we allow government to have a say in such issues? And what dangers might this pose down the road in terms of government control of information? I want to explore each of these issues in more detail, but the common theme in my views is that despite the fact that the government has perfectly reasonable reasons for wanting to intervene, it is unwise to let it do so. Additionally, I have come up with a few alternate proposals for addressing these issues without infringing in First Amendment rights.

As for spam – I agree that spam is a big problem. However, I still object to what amounts to government censorship. Even laws which allow the dissemination of political messages but restrict commercial spam are problematic. While most people think of fraudulent spam messages that try to steal people’s money, commercial spam could just as easily be an entrepreneur who is advertising a new business he is starting, or gathering funds for a start-up. In a capitalist society in which people have free speech, why should this be banned?

Now, spam is still a problem that needs to be dealt with. Internet providers and e-mail servers, which are run by private companies, have every right to block or filter spam. The government, however, is getting involved in censorship when it does so. Can’t companies be effective enough in regulating spam without government laws? Technology permits companies to block spam, so the governmental regulations are not necessary. Even if repealing these laws would cause increased spam, and perhaps companies would not succeed in blocking it all, isn’t this inconvenience a small price to pay for preserving our First Amendment rights?

In regard to net neutrality – again, it makes sense that people should have complete access to the web, without their ISP’s interference. Again, however, what gives the government the right to influence how a private company (ISP) delivers information? In order to balance the government’s desire to ensure that ISP business biases do not influence citizen’s access to information and the concern that government should not be involved with how we receive information, I can think of two proposals, though I’m sure there are many more ways to deal with this issue. One idea would be for the government that ISPs make publicly known whether they provide net neutrality, of if they modify internet access in certain ways. That way, citizens at least know what type of service they are getting, though the government is not interfering with the spread of information. Another proposal responds to an idea brought up in the Tribe/Goldstein pieces. If the government deems that the internet is such a vital form of communication in society, and ISPs are so badly distorting access that people are not getting proper access to information, the government can think of creating its own strictly net-neutral ISP. That way it can ensure the neutrality it so highly values, but without infringing upon the rights of the ISPs and citizens. Having government-sponsored internet, of course, opens an entire new can of worms….

Accessibility of Free Speech and the Marketplace of Ideas

Tribe and Goldstein argue that net neutrality mandates would violate First Amendment rights. What they do not do is explain what exactly the First Amendment means in the “digital age”. They explain the First Amendment in a piecemeal fashion. I would have been more convinced (since I generally agree with them) had they taken the time to first explain how the First Amendment and free speech should be interpreted today.

Free speech in the analog world and the digital world are different. Each world has its own structure and mechanisms. The biggest difference between the two worlds is that in the digital world, a person’s free speech is capable of reaching a much larger number of people than in the analog world (N.B. unless one is a well-known public figure). Does the right to free speech include the right to have that speech be accessible to all? During the time of the Framers, it was not logistically possible to have full accessibility to speech; however, today it is. If the internet were a public forum, then maybe everyone should have access to the speech of those in the forum (unless someone’s speech disrupts the integrity of the forum), but the internet is not a public forum. It seems that the Government has little justification in trying to ensure that “the voices of various speakers receive equivalent attention and that audiences receive equal access to all speakers.” (2)

Connecting last week’s readings to the net neutrality debate, it is interesting to consider how the marketplace of ideas would fit in. J.S. Mill believes that such a market allows the truth to be revealed. In the case of net neutrality one can argue both for and against mandates. Those who would be in favor could argue that if all voices are not represented equally then the truth may never be achieved. Those who are against mandates could argue that the marketplace for BSPs would become static and little innovation would occur with mandates -- possibly limiting the development of the internet itself and the information that we can find on it. In a way BSPs participate in a Darwinian process where the best ideas and sites succeed and thus become easily accessible.

Spam of a Different Flavor

In the past, people have objected to solicitation because it was overly personal. Watchtower dealt specifically with the question of door-to-door solicitation, and it was only because their method was so personal, I believe, that the plaintiffs succeeded. On the other hand, we object to spam email precisely because it is so impersonal. Unlike the Watchtower Jehovites, spammers rarely feel strongly about spreading an idea or recruiting members for a cause. Rather, they are commercially motivated, whether by legal means or through some kind of fraud, and the way they solicit reflects this. They do not care whom they reach, so long as a tiny fraction of these people respond and buy their product.

One worry with spam email regulation is that it will chill the speech of non-commercial groups like the Jehovites who also wish to reach the largest possible audience. In practice, however, this rarely takes place. Those who feel strongly about spreading the good word, or overthrowing the government, or whatever, tend to prefer the personal touch or simply lack the technological know-how to spam on a commercial level. In the case of Jehovah’s Witnesses, the religion even mandates this personal relationship. While I am intrigued by Alex’s prediction that “[m]ass emailing provides a remarkably powerful and inexpensive medium for small groups to promote their ideas”, I cannot remember the last time I received spam from a non-commercial enterprise without first requesting to be on the mailing list. It is in the interest of smaller groups to address a more selective and responsive audience. The obvious argument to the contrary, of course, is that the more people they reach, the more supporters they will find. By choosing to remain selective, however, small groups add to their legitimacy. I am much more inclined to engage with a group that does not harass me via unwanted email on a regular basis. Many groups have realized this themselves, I think, and therefore do not spam. Thus the regulation of non-commercial email in some states does not bother me as much as it seems to bother some of my classmates.

My question for this week is, “Is CAN-SPAM effective?” As of 2004, it wasn’t, according to this article. But I am interested to learn if anyone’s spam actually conforms to the model set out by the FTC. Mine doesn’t.

The opinion delivered on the Watchtower case incited within me a strong reaction against the position taken by the court because I initially felt that the Court did not focus enough attention on the issue of privacy. I was incensed that Jehovah's Witnesses could so easily disregard the rights to privacy that individuals have within the home of self-regulating whatever speech individuals wanted to receive or participate in. Door-to-door proselytizing violates that privacy by essentially imposing the Jehovah's Witnesses faith to individuals, and it was from this perspective that I at first rejected the Court's decision in overturning Stratton's ordinance. However, after reading the articles on spam regulation and taking into account the discussion on anonymity and free speech from last week's class, I recognize that my reaction to the decision of the Watchtower case has the potential to overly restrict free speech in that having to register for a permit, it is essentially the government who is deciding on which speech can be allowed to be delivered door-to-door rather than the individuals who want to do the speaking. The ordinance issued by Stratton essentially put the Jehovah's Witnesses in a tough spot of having to "inform the government of [their] desire to speak to [their] neighbors and then obtain a permit to do so" and I agree with the Court in saying that no organization should be put under that restriction.

However, I do want to discuss further this boundary between free speech and privacy because I believe it to be an underlying issue that connects door-to-door marketing and spam emailing. The boundary even in the real world it is unclear; I personally do not enjoy Jehovah's Witnesses stepping onto my private property to deliver their free speech nor the idea that I have to opt-into the system that allows me to place a "No Soliciting" sign on my private property. Regardless, if the default for spaces in society was set to "No Soliciting," where would individuals be allowed to solicit and speak their speech? My main question here is whether or not individuals consider their personal email (or potentially their work email) as their own private property. In my opinion, I do not think free speech and private property should ever intersect, though I am able to see the restrictive implications of my choice. I would therefore like to further discuss this issue for it would provide me with some insight in how to further interpret the behavior of Jehovah's Witnesses and spam senders.

I don't want any spam! and net neutrality

As someone who has abandoned old email accounts because of the sheer volume of spam they received per day, I empathize with those who protest the annoyance of spam. But the reasoning for the Watchtower ruling is compelling, and a mapping of it onto the Internet seems to justify much of unsolicited email with political and religious leanings. Watchtower, however, does not totally protect unsolicited commercial efforts - the opinion even states that if the city ordinance just concerned commercial efforts, the city might have had a case given the city’s entitlement to protect its citizens from fraud and privacy - and so in mapping onto the web, commercial spam is seemingly unprotected and undermines much of the CAN-SPAM legislation which does protect a company’s right to spam. The Watchtower ruling reaffirms the idea that ‘the little person’ has a right to speak to an audience, not necessarily the right to profit from them.

Though the federal government may be entitled to regulate commercial spam, law is probably not the most effective tool in combatting commercial spam - the sheer volume and number of senders makes it extraordinarily difficult, and except for cases where senders of spam are engaging in criminal activity like stealing information, legal intervention does not seem worthwhile. The Virginia case, for example, was able to prosecute one spammer, and yet there are millions abroad and out of easy reach for the government. But what if people who don’t want any spam? The architecture of the internet can provide this protection from much better than the law; like a fence around the home, spam filters have become so pervasive and increasingly effective that the impact of spam is dramatically diminished. Moreover, the BSA study seems to suggest that, though virtually everyone receives some sort of spam, few actually read it, suggesting social norms and education regarding spam has reduced the issue - educating people, then, seems to be a powerful tool.

Regarding net neutrality, the fundamental issue surrounding Tribe and Goldstein’s argument, which the Benkler reading brings up, is that TG value the privileges of BSPs over the rights of individuals and their entitlement to freedoms of speech recognized by the First Amendment. Though TG say that an open Internet would be good, they maintain that BSP’s are motivated by a desire to ‘innovate in their products’ to meet the BSP’s ultimate goal of fulfilling the consumer’s need for a robust internet. What TG omit is that these companies are not motivated by a humanitarian concern for others, but rather by profit - not necessarily an inherently bad thing, but a fact which warrants regulation to ensure that the profit motive is not resulting in a destructive manipulation of the medium. TG also claims that government regulation to protect neutrality will slow the growth of the internet and the BSP’s ability to produce a good product; this claim is ludicrous - entire highly critical, profitable industries, like banking and utilities - are heavily regulated and largely meet the needs of its customers.

I may be confusing BSP’s, ISP’s and their respective roles, but it seems to me that these companies are not providing and producing content on the internet, but rather providing access to said content created by others. Given this, I do not see how ISP’s can decide what type of content an individual can and cannot consume, so the “traffic management techniques” which TG bring up seem unjustified (if an ISP wants to ensure a fast internet/good product for its consumers, it ought to expand bandwidth rather than manage what content is important or not). Moreover, as the Public Knowledge YouTube video notes, given this “traffic management technique” ISPs could easily abuse the system to increase profits, for example bottlenecking protocols like Skype or BitTorrent in exchange for its own paid alternative.

TG also makes the point that if BSP’s had greater control of internet traffic, it could enhance the aggregate majority’s ability to get information faster -- but what about minority? They are just as entitled to access to information, this implementation of a majority ruled internet would bottleneck their ability to access information and would likely squash out information and content on the internet that is unpopular, bringing up issues akin to opt-in programs’ we discussed in previous lectures. Without net neutrality protecting equal access to all information, how can you know that that extraordinary but not mainstream thing you have yet to see and experience is extraordinary if you have no access to it?

Question: What are other ways we can protect people from spam besides educating and spam walls? Are there more effective ways afforded by law?

Why the Fuss over Net Neutrality?

So far this semester, I’ve assumed that the Internet will persist in its free and open incarnation unless the government decides to regulate it otherwise.  Never did it occur to me, until reading up on net neutrality, that the government should potentially be charged with regulating the Internet so that it doesn’t deviate from its present operating structure.  Because I’ve been so focused on the dangers derived from the Internet as it exists now, with a non-commodified, non-stratified design leading to its remarkable spread yet also leaving it vulnerable to exploitation, I still have a hard time coming around to the prospect of abuses on the part of mercenary providers, as opposed to irresponsible (or plain clueless) users.

The principle of net neutrality is simple enough to understand, if the YouTube clip is any indication.  In essence, the telecom megaliths, such as Comcast and Time Warner, shouldn’t have a say in what their clients are able to view online.  This is no different from their having stewardship over telephone cables and the like, but not over the actual conversations transmitted through them, or to whom those conversations are directed.  To some degree, there will always be gatekeepers to the Internet in the form of ISPs, BSPs (as the Time Warner document kept referring to), or whatever the right acronym is.  But I agree with the proponents of net neutrality that ISPs shouldn't have license to strike deals with select web-based companies and effectively discriminate against those companies' competitors by making it a privilege--or chore--for subscribers to access them.

In practice, however, I don't buy into the doomsday perspective that an end to net neutrality is on the horizon or already here.  For one, it's doubtful that the tech companies will enter into a "corrupt bargain" with the wily ISPs, because they're more or less wedded to the Internet's founding ideal of open access.  From the perspective of the telecom giants that would stand to gain from such a bargain, there might be fallout not just in terms of public perception--if, all of a sudden and on a variable basis, they slowed down connectivity or jacked up premiums--but also in terms of market share.  Though I'm mindful of the tendency for firms to collude and conglomerate if given the opportunity to, I don't think that's an eventuality on the Internet, so long as the barriers to entry remain low and the choice among ISPs remains plentiful.  

Even if the market isn't capable, on its own, of seeing to net neutrality, I am skeptical of legislation or even adjudication being able to do the trick.  Clearly I'm coming at this issue with a different motivation from Time Warner, but its lawyers make a seductive point nonetheless: that governmental management of the Internet stands to be just as detrimental to speech rights as corporate management.  As much as I want to side against the ISP bigwigs in this debate, I'm ultimately swayed by their appeal to the free market, as providing them with incentives to maintain net neutrality; by their concern, from a procedural standpoint, that any regulation would take effect post hoc and thereby chill speech ex ante; and by their resort to the First Amendment in equating themselves to private speakers.  No matter the objective, whether it's to limit or expand access to speech, the government is prohibited from interfering with privately-held outlets' decisions as to what that speech is, how it is to be purveyed, and to whom (so long as people aren't being systematically excluded on the basis of an incontrovertible and identifiable trait like age or race).

I'm left with two questions following from that last point: 

1)  Has the Internet taken on the cast of a public good rather than a discretionary commodity, and if so, what responsibilities and limitations does the government have in seeing to its provision?

2)  How does (or doesn't) Time Warner's criticism of net neutrality square with Turner Broadcasting System v. FCC's conclusion that the government is legitimately disposed toward regulation when it has a compelling interest, the regulation is content-neutral, and speech is restricted in the least extent possible?

Balancing Freedom and Protection... Again

Watchtower highlights the idea that First Amendment protection is meant to promote the free and open exchange of ideas, especially for the “little guy” marginalized groups like Jehovah’s Witnesses. Further, MaryCLE, et al and Jaynes contribute to the idea that fraud is unprotected by the First Amendment. Given that most spam e-mailing contains links to fraudulent sites, these decisions make sense. I am more interested in the point raised by Jaynes’ lawyer, who wondered if this decision would apply to and therefore ban other forms of speech sent out in mass e-mailings as well. Virginia’s law specifically covered all mass e-mailings, not just commercial ones, so while Jaynes can be prosecuted, Jehovah’s Witnesses would be unable to spread their message through an online campaign. Clearly, there is a need to define what forms of mass e-mailings are allowable under the First Amendment, that is, the government needs to regulate the content of mass e-mails. The government already has the power to require media providers to promote different voices, a la the Turner decision, so the government could force the Virginia law to make allotments for mass e-mailings of a non-commercial nature. However, the government won Turner because the requirement made no reference to content provided by the media. The problem for the government is whether it can regulate the content of mass e-mail without violating the First Amendment as laid out in Turner. Perhaps the solution is to allow for mitigating circumstance. Since spam is clearly harmful to the free exchange of ideas, and if the government’s job is to protect people from harm as well as to promote the free exchange of ideas, then perhaps the government does have a right to regulate on the basis on content. However, the problem with content regulation is that it can easily constrict the sphere it was supposed to enlarge. The question is, is the risk worth it?

Spam Regulation and Unpopular Speech

At first glance, this week’s materials seem to suggest that few conflicts arise between First Amendment values and spam regulations. After all, the CAN-SPAM Act pertains only to “commercial” emails, and the Maryland and Delaware cases both uphold laws directed at profit-driven commercial schemes. Surely this sort of fraudulent and parasitic behavior has very low priority in First Amendment’s protection of speech.

However, stepping outside the current case law, it is extremely troubling to consider the process by which the federal CAN-SPAM Act (CSA) and similar state statutes were put in place. While these statutes were partially motivated by material costs (congestion, operating fees, etc.) to the system, it seems that a significant impetus was the mere inconvenience and unpleasant experiences that arise from spam. Indeed, the CSA treats the two as equal causes for the Act, stating that mass spam threatens the “convenience and efficiency of electronic mail.” While the latter is certainly a legitimate concern, the former seems to be point to the possibility of a dangerous trend in speech regulation.

Yes, spammers are as unpopular as telemarketers and door-to-door solicitors, but this should not diminish their First Amendment rights. To be clear, these rights do not include protection for emails that are fraudulent or possibly even those that are solely profit driven. However, the extreme prejudice with which spam operations have been terminated should give free speech proponents significant pause. The unpopularity of spam seems to be the main impetus behind the state and federal regulations, and even some of the judicial decisions upholding these laws. The measures have been applauded by justices and congressmen alike, such as Maryland state senator Teitelbaum, who approved of an anti-spam law as a “piece of legislation that protects the people.” The ease with which these regulations have been passed should serve as a striking reminder about the importance of preserving true protected speech, and the insidious tendency for politicians to suppress messages which their constituents find displeasing.

After all, the First Amendment’s freedom of speech was constructed as a protection for those whom society wanted to muzzle. Watchtower speaks of the importance of protecting the voices of “little people” who are lacking in financial resources or overall manpower to use normative channels of expression and must instead use canvassing or campaigning to further their message. Mass emailing provides a remarkably powerful and inexpensive medium for small groups to promote their ideas. It is imperative that restrictions on such an empowering tool as email be the “least restrictive” means necessary to legitimately curtail illegal messages. Otherwise, there is the possibility for the creation of over-broad laws which intentionally aim to restrict unpopular but protected speech.

Spam regulations are reconcilable with First Amendment rights, provided that they only concern truly commercial or fraudulent messages. However, any statutes which aim to limit speech must be viewed with heightened vigilance, to assure that cleverly constructed restrictions on unpopular but protected speech do not slip through the cracks of judicial review.

The Supreme Court Baseball Case

Just found that great case that Anjali mentioned in class. Thought I'd share.

Google's Buzz and Privacy

http://www.nytimes.com/2010/02/13/technology/internet/13google.html?em

Knowing the consequences of anonymity

The main theme found in the readings this week’s is Anonymity vs Accountability. When should an individual have the freedom to conceal his identity, and when should his anonymous identity be forcibly revealed?

As Citron and Salove have made clear, part of the issue with anonymity is people believe they are completely untraceable; thus, people believe they can post obscene or discriminatory opinions on the Internet without any repercussions. Unfortunately, it appears anonymous bloggers do not often face consequences for their actions because it is expensive to file a suit against them. It is expensive for people to hire the service of law firms such as ReputationDefender, to protect their reputations on the Internet.

Consequently, instead of having a handful of lawsuits germane to seriously protecting an individual’s emotional estate and reputation, it is more common to come across cases in which wealthy individuals or corporation request a subpoena to unveil the identity of an anonymous blogger (aka CyberSLAPP cases). A possible solution to avoid CyberSLAPP cases is to make it mandatory for large corporations pay a refundable fee to unmask an anonymous blogger. After the identity of the blogger is unveiled, the corporation can retrieve the fee it paid for the subpoena ONLY if it carries out a lawsuit against the blogger. This may reduce the number of CyberSLAPP cases because corporations would have to invest money in a case as a demonstration of their commitment to the case. I doubt many corporations would pay a large sum of money simply to unmask an anonymous blogger.

I would not extend this policy to individuals, however. To extend this method to individuals is unfair since not everyone can afford to pay a fee to unmask an anonymous blogger. I believe bloggers, or cyberbullies, would not be commonly found if they knew how easy it is to trace them on the Internet. As the FAQ we read demonstrates, is appears most people are unaware that they can be traced on the Internet and have their anonymity on the net taken away from them. Perhaps educating the public about the realities of the Internet in itself will reduce the amount of harassment on the internet.

Also, people should know there are helpful resources on the Internet to protect themselves against cyberbullies and cyber stalkers. Internet sites such as http://www.cyberlawenforcement.org/index.html (Wired Cops) and http://www.wiredsafety.org/ (Wired Safety) have committed themselves to protecting individuals from harassment on the Internet. If people are aware they can be protected, or prosecuted again (for those harassing others), self and social regulation on the Internet would occur.

For Anonymity

Both Citron and Solove ignore one of the most contentious aspects of the anonymity debate, an aspect interestingly identified at the outset of the Q&A. Whether or not anonymity is a right to internet users aside, it is a fact that anonymity is the central (perhaps most central) characteristic of the internet. While both readings address the gravity of any decision that might be made on this subject, neither reading gives proper consideration to the seemingly tangential ramifications of limiting anonymity on the Internet. Our behavior online is informed by the pretense of anonymity whether we are writing defamatory comments about our teachers, or visiting websites from our childhood (I may or may not have been a Neopets user when I was 9). We cannot be so myopic in our analysis of this issue to suppose that restricting anonymity will only affect our free speech. That is to say, the infringement of free speech is notably more horrifying than many of the other repercussions, but as we have noted time and time again, the Internet is home to an incredible pastiche of activities.

I agree with Alex that one of the largest holes in Citron’s argument is the ambiguity of “real-world” harm. Interestingly, this seems to bring us back to the ambiguity of “material” destructiveness we struggled with last class. David’s argument for online IDs may be an interesting consideration, but with this particular issue (the issue of anonymity) we (unfortunately) must look to the plausibility or possibilities of actual implementation. We cannot simply decide that online IDs are necessary, or even that anonymity must be curbed, and then look towards methods of implementation that wont egregiously affect our civil rights. Until we are certain of the exact mode of implementation we will use, and, more importantly, of the transformation incurred by the Internet landscape, we cannot make any decisions.

If we, properly, regard anonymity as extending beyond what we say or write on the internet to what we do on the internet, how can we assume that the non-anonymous internet will hold any resemblance to the one we use now?

Anonymity in the 18th Century and Today

The United States, to a certain extent, was founded on anonymity; however, this claim cannot be used to defend complete anonymity on the internet today. Anonymity has changed significantly from the 18th century for two main reasons. First, anonymity during the Founding was primarily a part of the political sphere. Today anonymity is very much a part of the private and public spheres insofar as normal citizens are more affected than they were two hundred years ago. Second, the scale of anonymity (i.e. the ability for people to express themselves anonymously) today is different than in the 18th century. Access to the internet has allowed millions of people a convenient way to express themselves anonymously. If individuals wanted to publish something anonymously in 1776, they needed money to mass produce their ideas. Today anonymity is essentially cost-free (fiscally) on the internet.

As we’ve seen in the readings this week, anonymous bloggers and individuals online have the ability to do significant damage to peoples’ lives, emotionally and economically. Thus, something needs to be done to address the consequences of anonymity on the internet. Whatever actions policymakers choose to take, they must keep in mind the tension between the freedom to speak and express oneself and the freedom to ensure that individuals’ reputations aren’t destroyed or their privacy isn’t invaded. (Solove) I believe that there are several options available to policymakers. First, the law can essentially remain as it is and allow anonymous bloggers to be identified only for legal purposes. The anonymous individual, however, should be given a certain amount of time to contend his being revealed. The second option is that owners of websites and blogs become legally more responsible for the content posted on their site. They would be the ones to remove damaging content (if asked) and they would decide if it is necessary to remove that content. If users were denied the removal of a post, then they could take their case to the courts and the websites would have to defend themselves. This option would not significantly reduce free speech as a whole since there would be thousands or even millions of people making these decisions; thus, there would not be a uniform censoring of speech.

The best option in my opinion is for policymakers to take the first approach where the law essentially remains the same. I also think that a campaign should be launched to encourage websites to take a more active role in patrolling their websites for truly damaging material. Congress could come up with some sort of incentive program for websites to ensure free and appropriate speech. For example, the more websites have legal suits filed against them for not taking material down, the likelier they are to be reviewed and issued a financial penalty.

Issues with enforcing traceable anonymity

I think the previous posters on the blog have done a good job discussing the benefits and drawbacks of anonymous speech, and I don't want to spend too much time repeating some of the same points. To me, the system of traceable anonymity seems to make the most sense, since it preserves the parts of anonymous speech which are essential to democracy, while providing deterrents for those who would abuse anonymous speech and break the law using anonymity as a veil. I think that an interesting issue to discuss now, which I have no solution for, is ho the government can and should go about actually enforcing traceable anonymity.

In some cases, this does not seem to be so difficult. I think there is consensus that frivolous CyberSLAPP cases should not be allowed, and the judicial system should implement a system so that ISPs only hand over information about clients for legitimate reasons. The question now becomes, how can the government force all companies to keep such records? If a company already has user information on file, a court subpoena will make them hand over a user's information to the government. But nowadays, there are many websites which one can use which don't know much more about you than your IP address. Does the government have the power to tell these companies to start collecting more information about their users, so this information can be available if the government is trying to track someone down? It is unclear to me if the government has the power to do this. On the other hand, might this be necessary in order to properly regulate anonymous speech for those cases in which people should be prosecuted for their online speech? In a way, this brings us back to some of the questions we have been discussing in previous weeks about the government giving out Internet IDs so that it knows what everyone is doing online.

So my main question is this: How far should the government go in compelling websites to keep information about their users so that traceable anonymity can be effectively used when the government deems it necessary?

Section 230

Daniel Solove proposes an alternative method of reading section 230 stating that operators might be liable for prosecution after being notified of material that violates “somebody’s privacy or defames her.” While I think that this is a good idea to modify the blanket protection of section 230, it bears thinking through a bit further.

In the reading and in lecture, we have seen that many companies file anonymous and eventually frivolous lawsuits, such as the Allegheny lawsuit, in order to obtain subpoenas to uncover the identity of anonymous bloggers and whistleblowers. Given this tendency, I think that modifying section 230 (or modifying the reading of the section) could result in a similar tendency – what would happen if individuals who were disgruntled with any sort of content filed an enormous amount of frivolous requests with ISPs to take the material down? The scope of material posted online that you could construe to violate your privacy could end up being quite large, as long as you could prove that in some tangential way it related to violating your privacy or personal rights.

Taken to its logical conclusion, the easiest thing for ISPs and other content providers, such as Craigslist, Yahoo or AOL, to do in this situation would simply be for them to take down all sorts of so-called “objectionable material” flagged by individuals, because in the off-chance that they did not take down some objectionable material and it turned out that this was a true invasion of privacy, or libelous, or something similar to that, then they would potentially be slapped with both huge fines and also with the viral spreading of news on the Internet among bloggers and other commentators, which in many cases proves to be the worst punishment.

Although we could try to perhaps try to narrowly tailor the law so that one could only interpret it in that one can only object to material that is very narrowly about oneself, maybe we should look at a financial solution? I’m of the opinion that money generally speaks, and perhaps if we state that individuals who file these frivolous claims have to pay their own legal fees and the ISPs’ legal fees if it turns out that the lawsuit is frivolous, this could work? Then again, I don’t really about the legality of this, and I have the feeling that this could swing the pendulum in the opposite direction.

Confessions of a Tarring Survivor

Last night, instead of agonizing over an effective response to the readings, I was doing the same to a hurtful comment on YaleFML.  To my dismay (if not surprise), the website I'd casually taken to as a diversion from schoolwork had, like JuicyCampus before it, morphed into a launching pad for persecution against my character.  Calling me out by class year and my inadvertently scatological initials ("BS '12), some anonymous junior ("'11") had insinuated without basis that I belong on the YDN's spoof list of people who should be screened for STIs.

Such defamation, in the colloquial as opposed to legal sense, isn't anything new for me.   In fact, just the day before, I spent an hour on the phone with the founder of GoodCrush, a theoretically airtight service that allows Yalies and undergrads elsewhere to name up to five crushes and have them be notified only in case of a match.  Someone, again acting anonymously and maliciously, took it on himself to hack into my account, thanks to a glitch involving case-sensitivity with email addresses.  Without my permission or knowledge even, this person proceeded to rack up five crushes, all of whom were either close friends or exes of mine.  Fortunately, I'd maxed out on the crush quota prior to this misappropriation of my online identity.  But if the false crushes hadn't been relegated to a waiting list, and if they'd reciprocated with crushes of their own, I would've stood to be humiliated in the analog world.

That, presumably, was the attacker's intent: for my online reputation to bleed into the offline reputation that I'm comparatively capable of upholding.  Of course it's impossible to have total control over how others perceive you, nor would it be interesting to inhabit such a monolithic community where everyone thought of you uncritically.  I don't mind being subject to opprobrium, so long as there's a rationale and an identifiable source to it.  What's so disorienting about being the target of an online mob, by contrast, is the utter absence of those criteria both.  Often I worry not just that potential employers will stumble on embarrassing mistruths about me, but that I'm being prejudged as is for a "scarlet letter" imprinted on my personhood undeservedly, as though I've taken on new life as a campus-wide meme for promiscuity.  

All this notoriety because of a vindictive pair of suitemates, who've since withdrawn from Yale for psychiatric reasons.  Not that I can peg them definitively as the original culprits, since I never bothered--and likely wouldn't have been able--to obtain a subpoena from JuicyCampus while it was up and running.  Besides, it doesn't so much matter who the slander (or is it libel? neither?) originated with, because it's groundless by definition and requires only an unsympathetic, unrelenting mob to see to its perpetuation.

I was hesitant, for three reasons, to have this blog post turn on my own experience to a greater extent than on detached argumentation.  First, I risk being marked down for not identifying and chipping away at what I take to be a logical or legal defect in the readings (although I'll get to that in a moment).  Second, even before I was serially victimized online and grew guarded as a result, I've been careful not to let my personal life seep into the classroom.  Third, I don't want you, my classmates, to think any less of me--either because of the scurrilous content itself, or because the whiny, paranoid vibes I might be giving off in relating it to you.

But I've gone ahead with a revealing post because I've been cowed into silence for too long, and I'm sick of being bullied without reason or recourse.  On a practical level, I want to learn how to broadcast my story in a way that calls attention to the inadequacies of existing law, insofar as it's applied to online speech.  That's the proximate reason why I enrolled in this class, although I obviously have a foregoing interest in cyberlaw and civil rights in general.

Despite the self-serving appeal to Citron's argument that "cyber-attacks" ought to be combated through a strengthening of regulation, I cannot reconcile my particular desire for vindication with my principled commitment to the First Amendment.  As much as I'd like to clear my name, I can't bring myself to agree with David's stance that "malicious defamation is a greater problem than the protection of internet anonymity."  Like J, rather, I'm instinctually wary of any proposed laws that would obviate against anonymity, thereby chilling its constructive functions like "whistle-blowing" and whatever the modern equivalent is to pamphleteering.

Then again, going off what little I know about social psychology, I acknowledge that anonymity does serve to embolden and give cover to would-be abusers of speech, particularly when they act in concert.  And I also buy into Citron's reasoning, echoed by Eric in his post, that such abuses can demonstrably prevent the victims from exercising their own free speech rights (e.g. "denial of service" attacks and threats of violence).

Nevertheless, to agree with J a second time, I'm in favor of gradual regulation via social norms.  The alternative, namely legislative or judicial intervention, carries the risk of overbreadth by setting off more ills than it endeavors to cure.  

My question, then, not just for tomorrow's discussion but for myself as I move forward: Between remaining silent (like I ended up doing yesterday with the YaleFML remark) and pressing for all-out regulation, what tactics should victims of online harassment fall back on, in asserting their right to unimpeded speech?  A few examples come to mind, such as my obstructive strategy of pasting arcane documents, like the Mayflower Compact, into threads concerning me.  There's also Google's feature that lets you have a say in the ordering of search results about yourself.  

None of this may be enough to outsmart the mob at its own pernicious game, but I feel we're better off, in the aggregate, with an accommodationist approach--casualties and all--than with outright regulation of anonymous speech.

There are so many paradoxes regarding the interlinking issues of free speech, anonymity, and privacy. The internet provides a veil of anonymity to individuals that allows them to feel less restricted in terms of what they can say and speak in the cyber realm, but this anonymity has created tensions in how to deal with speech that is critical and defamatory towards other individuals online. One of the main clarifications that needs to be made in dealing with these paradoxes of free speech on the internet is whether the cyber realm is separate from the physical realm in the sense that it has its own rules and regulations. If this distinction was made, it would most definitely solve these problems. Individuals would recognize that the internet is a place where individuals have a different kind of freedom to say whatever they choose. However, these two realms cannot be treated separately from one another because not only is the internet a means in which individuals in the physical realm make transactions, do their work, and interact, there is also an emotional and psychological component of individuals that connects the digital to the real world. We cannot help but react to news and speech that we read online with physical emotions; we have yet to develop 'cyber emotions'.

Individuals may have a right to speak and remain anonymous online, but because the cyber and physical realms are so linked, the cyber realm cannot be ruled with its own rules that disregard the rules that have already been set in place, acknowledged, and followed in the physical realm. In creating laws to regulate the speech online, lawmakers must remain consistent with how free speech has been treated in the physical realm, and those who break those rules need to be punished. When individuals go online, we come to the cyber realm with the conceptions and beliefs that the rules that we live by in the physical realm will be respected online. We expect to not be faced with discrimination, hate mail, and slander in the real world, and I believe that those individuals who have break these rules and do not respect the opinions of others must be punished by having their identity revealed in order to have justice and protection for individuals online. The respect for others should not just fly out of the window once we log online. We have a responsibility to this society and to our social norms as J mentioned to maintain the same respect towards individuals in the physical and cyber realm.

A point of discussion that I did not address in my reading response that I would like to discuss in class is the idea of speech being "newsworthy" and a "legitimate concern to the public." The examples seemed to be relatively vague in the readings and I would like to discuss the implications of the definitions of these terms when applying them to online speech.

Against Anonymity

The First Amendment protects us from federal restrictions on free speech. It does not, however, give us the right to say whatever we please, in whatever way we see fit. The example of shouting “fire” in a crowded theater is a dead horse and so I will not dwell on it. But it is important to recognize that anonymous speech is a privilege. When it comes to the Internet, I do not think this is a privilege we should have.

What is important, as Meiklejohn aptly notes, is “not that everyone shall speak, but that everything worth saying shall be said.” Anonymity gives those who would otherwise not speak an opportunity to make their thoughts known without repercussions. This is a benefit to society, so long as what these anonymous people have to say needs saying. Deep Throat reminds us that such instances do occasionally arise. More often, however, anonymity emboldens people to say things that do not have to be said.

Section 230 preserves the ability of commentators to abuse the Internet as a public forum. Yet by posting anonymously, delinquents can spread false rumors about others. By impersonating others, they can defame someone without ever being called to task for it. It is no wonder that corporations have resorted to CyberSLAPPing: bloggers are now able to post anonymously and spread rumors, so the corporations are using a dirty trick of their own in order to weed out rumor-mongers. Anonymity has led to the proliferation of online defamation, even if in some cases such defamation is merited.

I believe malicious defamation is a greater problem than the protection of internet anonymity. This is why I would like to see the institution of government-issued internet IDs. Setting aside questions of government surveillance, such a system would not only make misleading impersonation of others impossible, but more importantly would encourage people to write only what words they mean, what words they do not mind having associated with their name. At first glance, some of you may find this system terrifying. Nevertheless, I contend that those things worth saying are worth taking credit for. There are laws that protect against unjust persecution for speaking one’s mind. Without anonymity, whistleblowers could still look to these for recompense. But those who spread malice for their own satisfaction would hopefully think twice before posting their comments.

Do you think a system of internet identification is feasible? We touched on this in class and quickly wrote it off, but I am interested in hearing whether people think internet accountability truly is something to be avoided.

Expression of Cyber Mobs

In discussing the applicability of civil rights law to internet abuses, Danielle Citron relies heavily on the Court’s narrowing of R.A.V. v. City of St. Paul. Specifically, she notes that the Court limited the R.A.V. ruling with its subsequent ruling in Mitchell v. Wisconsin, which held that additional penalties for hate crimes were constitutional, as they punished defendants for their discriminatory conduct, not their bigoted ideas. In doing so, the Court noted that “whereas the ordinance struck down in R.A.V. was explicitly directed at expression (i.e., ‘speech’ or ‘messages’), the statute in this case is aimed at conduct unprotected by the First Amendment.” Accordingly, Citron correctly concludes that the State may inflict punishment not for an expression of bigoted ideas, but for concrete conduct which is motivated by that prejudice. In this way, the law is not punishing the ideas, but rather the actions itself, and therefore avoids infringing on First Amendment rights to free expression.

Citron then attempts to transfer this theory to cyber-bullying, suggesting that cyber mobs be regulated under civil rights law. However, her argument fails in its assumption that all, or even most, cyber bullying is motivated an attempt to inflict “real-life” effects. She cites several examples of cyber mobs inflicting “real-world” harm, such as preventing a woman from obtaining ad revenue by shutting down her blog through denial of service messages, and impeding from an African American’s job hunt through the dissemination of false information. However compelling these examples may be, they leave out a large category of cyber mob’s speech, that which is not motivated by inflicting “real world” harm, but rather through mere expression of hatred or bias.

Whether or not this hate speech is protected under the First Amendment is not the subject of this post. Rather, it is important to realize that Citron, by assuming that all cyber-mob activity is designed to inflict real-world harm, overlooks a significant portion of the internet misconduct she seeks to limit. According to Citron’s interpretation of R.A.V. and Mitchell, without the motivation to inflict harm, this speech would merely be considered expression, and therefore may well be immune to civil rights law.

Question of the Week: Should cyber-bullying of less vulnerable individuals, such as white males, be more tolerated than similar activity directed at groups who have traditionally faced discrimination?

My Issue with Traceable Anonymity and the Status Quo

Accountability for one’s speech is important for society as it encourages people to be mindful of their words and forces people to engage others. Anonymous speech is also vital for society as it allows people to speak openly about their ideas and removes the audience’s speaker bias. I, however, think that traceable anonymity - the compromise between these two, at times conflicting, values - is an imperfect solution as it does not offer full latitude in protecting anonymous speech and proliferating ideas.

Solove cites some historical examples of anonymous speech which he acknowledges has been vital in the protection of society - extreme cases like Watergate. Traceable anonymity does seem like an adequate protection for most speech, even for some highly controversial speech as the process of tracking individuals is a long and difficult one.

Solove, however, approves of traceable anonymity, under which the law must decide when a speaker should or should be unmasked, whether revealing the speaker would or would not be good society. The issue I take with this solution is that, under extreme cases like Watergate, it does not afford complete protection for this speech as what is appropriate and good for society in these extreme cases can be highly difficult to judge, leaving less room in the Internet Age for future Watergates to be divulged.

Though the exposure of the Watergate scandal specifically may be a clear cut good, more generally the idea of finding and releasing the identities of individuals exposing highly sensitive information or producing highly controversial speech can conceivably create much harm, possibly dissuading future speakers from speaking anonymously even when they carry information important to the public interest. As Solove acknowledges, people, like those behind Allegheny Energy Service, could easily manipulate the system to discover the identity of an individual (though I do not defend the actions of the employee, Allegheny unfairly gamed the system to their advantage).

To propose another imperfect solution, we could handle anonymous speech not with law but with social norms. We, as a society, can realize that information we consume, particularly information announced anonymously, has been processed and skewed, sometimes intentionally and sometimes unintentionally by a people’s biases. Given a new piece of information, which could be highly controversial, we could realize that this information is imperfect and so more inquiry is warranted. [I realize this alternative is flawed as from a feasibility standpoint (everything is traceable online) and provides no level of accountability for what a person chooses to speak, among other issues.]

Anonymous speech is not always worth it.

An absolutist reading of the First Amendment undermines the simple truth that some forms of speech in our society are inherently more valuable than others. Commercial speech, obscenity, and speech that threatens public peace and the security of a state are simply less important than other forms of speech – and, as Solove recognizes, that’s why courts don’t give the same level of strict scrutiny to all forms of speech. Where does anonymous speech fall in this spectrum? Anonymity, as this week’s authors recognize, has value in our society: it allows people to be more experimental and present controversial ideas without the fear of ostracism or losing their jobs. Perhaps the best example of useful anonymity was the Federalist Papers: Jay, Hamilton, and Madison were able to frame the Constitution and express useful political ideas without undermining their personal politics and threatening their community reputations.

But anonymity has a powerful and dangerous “dark side”: the potential to spread falsehoods, invade privacy, and cause
reputational harm without redress. The Internet and digital age, in my opinion, certainly allow the benefits of anonymous speech to continue to flourish, but, if there’s one thing that we truly ought to recognize about the Internet, it’s that the medium can also greatly inflate anonymity’s dangers. Citron presents what is, in my opinion, a persuasive case for why we ought to regulate away such dangers: because the costs of bad behavior are low or non-existent, the Internet facilitates “mob rule,” allowing rampant victimization. In short, cyber-attack groups like the group Anonymous use speech to strike against women and minorities, effectively undermining others’ ability to use free speech online, threatening their safety or finances, or causing reputational harm. And, as our global reputations become more and more dependant on our digital identities, such harms become not just noteworthy – they become extensive.

I find myself incredibly sympathetic to this argument that anonymous speech on the Internet has a perhaps never-before-seen potential to cause far-reaching societal harm. In a world where employers often use a search-engine to check our credentials, when our bank accounts can be accessed electronically, and our homes can be viewed from “Google StreetView,” societal harms caused by anonymous speech are amplified. The “right” for you to anonymously publish my street address, cell phone number, and defame me doesn’t really seem like a genuine Constitutional right after all. Thus heightened protections and specialized legislation to combat these unique Internet anonymity dangers make sense.

This is not to advocate, however, that CYBERSLAPP cases should be legally valid or anonymity on the Internet should be taboo. Rather, we should continue to allow individuals to anonymously report company ills, societal harms, and spread political messages; we just shouldn’t allow them to do so to the point that they are effectively suppressing others’ right to free speech and creating widespread dangers and social unrest.

The law may intend to protect people's right to free and anonymous speech, but above all it is meant to protect people.

Question for class: Does applying a lesser standard to anonymous speech undermine free speech or is it necessary to prevent societal harm?