Archive for the ‘freedom of expression’ Category

City of London Police Hijacking Websites Without Court Orders

Thursday, October 10th, 2013

Some scary news out of London. The City of London Police has a new Intellectual Property Crimes Unit, and they are demanding – without a court order – that domain registrars shut down websites and redirect traffic to commercial websites that seem to be affiliated with the companies that made the triggering complaints to the police.

EasyDNS’s Mark Jeftovic – one recipient of these demands – is fighting back. He’s posted Whatever Happened to “Due Process” ? on EasyDNS’s blog.

Among the good points he makes:

Who decides what is illegal? What makes somebody a criminal? Given that the subtext of the request contains a threat to refer the matter to ICANN if we don’t play along, this is a non-trivial question. Correct me if I’m wrong, but I always thought it was something that gets decided in a court of law, as opposed to “some guy on the internet” sending emails. While that’s plenty reason enough for some registrars to take down domain names, it doesn’t fly here.

We have an obligation to our customers and we are bound by our Registrar Accreditation Agreements not to make arbitrary changes to our customers settings without a valid FOA (Form of Authorization). To supersede that we need a legal basis. To get a legal basis something has to happen in court.

(Emphasis and links omitted.) He also makes this point:

What gets me about all of this is that the largest, most egregious perpetrators of online criminal activity right now are our own governments, spying on their own citizens, illegally wiretapping our own private communications and nobody cares, nobody will answer for it, it’s just an out-of-scope conversation that is expected to blend into the overall background malaise of our ever increasing serfdom.

By the way, the City of London Police is the smaller of two police forces in London. The other is the Metropolitan Police. The City police are responsible for the smaller and older portion of London that is referred to as “the City,” which includes the center of the finance/banking industry as well as many of the major law firms. The Houses of Parliament, Buckingham Palace, and most of the rest of what you think of as London is outside the City and under the jurisdiction of the Metropolitan Police.

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Politics and the Media, Old & New (Part 1)

Saturday, January 5th, 2013

Right now at the American Association of Law School’s annual conference, the Section on Internet and Computer Law and the Section on Mass Communication Law are about to have a panel on a great topic: “Politics and the Media, New and Old”.

The abstract/write-up is below. (It’s very on-point for Blog Law Blog.) I’ll blog some coverage live once we start up, both here and on Twitter @tweetlawtweets.

As the Supreme Court recognized in ACLU v. Reno, “the Internet is ‘a unique and wholly new medium of worldwide human communication’.” Among its unique features is that the Internet democratizes the opportunity to engage in political speech by offering ready access to any speaker with an Internet connection to large potential audiences at the local, state, national or global levels. This program assesses the impact the Internet has had to date on the relationship between the media and public officials or political candidates. Traditional newspapers are struggling to find a sustainable business model and appear to be losing some influence over the policy agenda or public officials’ conduct. Internet-only publications and other forms of political speech on the Internet have a complicated relationship with traditional media organizations, which, of course, also rely on the Internet to interact with their audiences. To what extent are these changes fostering or inhibiting democracy? Is law reform necessary in response to these changes?

Court treats degrading online postings as protected free-speech opinions

Friday, October 19th, 2012

From contributing blogger John S. Merculief II –

A California appellate court has affirmed a lower court’s ruling granting a woman’s anti-SLAPP motion against her daughter’s ex-husband regarding online postings the woman made about him.

The genesis of Darren Chaker’s lawsuit against Nicole Mateo and her mother, Wendy, was apparently a contentious custody battle in Texas courts regarding the former couple’s child. This battle appears to have helped prompt Wendy Mateo’s online comments, which in turn led to Chaker’s defamation suit.

In granting Wendy Mateo’s anti-SLAPP (“Strategic Lawsuit Against Public Participation”) motion to strike the defamation suit, the appellate court affirmed that she was merely exercising her First Amendment right to free speech in the matter.

Principally at issue in the case of Chaker v. Mateo, No. D058753, 2012 WL4711885 (Cal. Ct. App. Oct. 4, 2012) were the online postings of Wendy Mateo regarding ex-son-in-law Chaker’s business practices and moral character. Examples:
  • “This guy is … a deadbeat dad.”
  • “He may be taking steroids so who knows what could happen.”
  • “He uses people, is into illegal activities, etc.”
  • Varied accusations of fraud, deceit, picking up street walkers, and homeless drug addicts
The court found that the postings, while not on sites that were truly interactive, were at least on the internet, which functions as a worldwide bulletin board (read: public forum):
  • Something called “Ripoff Report,” which describes itself as “a worldwide consumer reporting Web site and publication, by consumers, for consumers, to file and document complaints about companies or individuals.”
  • A social networking site into which Chaker had inserted himself by posting a professional profile (the opinion styles him as working in “forensics”).
As such, the court found that the comments Wendy Mateo posted were of public interest, regarding each forum.
But the court went on to conclude that the statements were nonactionable opinions (or, in other words, free speech) rather than actionable statements of fact by considering the statements’ contexts – internet forums – as likely places for opinions rather than facts, and not so much their content: “In determining statements are nonactionable opinions, a number of recent cases have relied heavily on the fact that statements were made in Internet forums.”
In fact, in analogizing to a prior case it handled in which a defendant had posted nine claims against a bank and its CEO in an expletive-laced rant, the court said:
In finding the defendant’s statements were nonactionable opinions, the [prior] court relied in part on the fact they were posted on the Internet Craigslist “Rants and Raves” Web site and lacked “ ‘the formality and polish typically found in documents in which a reader would expect to find facts.’” Summit Bank v. Rogers, 206 Cal.App.4th 669, 696–701, 142 Cal.Rptr.3d 40 (2012).
Here’s a review of California’s anti-SLAPP statute (Cal Civ. Proc. Code § 425.16). According to the court’s opinion:
The statute, as subsequently amended, provides in part:
  • (b)(1) A cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States or California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim. …
  • “ ‘(e) As used in this section, “act in furtherance of a person’s right of petition or free speech … in connection with a public issue” includes: … (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest. …
Note that the statute sets up a two-part test. In plain terms, first, the defendant must show that the statement that the plaintiff complains of qualifies as free speech in connection with a public issue.
If the defendant succeeds with Step One, the case is not necessarily resolved: The plaintiff must then show that he at least has a reasonable chance of prevailing if the case goes to trial, in order for the case to proceed from there.
Here, the court found that Wendy Mateo’s online postings fit the criteria for California’s anti-SLAPP statute.
Further, the court found that the postings were in online forums where people do not expect to read factual information.
As such, the court foreclosed on Chaker’s defamation suit by concluding that Wendy Mateo’s online postings are nonactionable opinions, i.e. free speech.
Left unanswered, though, is the question of what to do about the reality that many people treat online forums as sources of fact. More on this in a follow-up post, coming soon.

Trademark Infringement in the Presidential Election?

Wednesday, October 17th, 2012

Romney Believe in America - Get the DetailsI don’t want to spoil anything, so click here if you want to find out about the details of the Romney tax plan, including how he will cut $5 trillion in spending without increasing the deficit.

Cute, huh? (At least if you are a Democrat.) Now that you’ve seen that, let’s think about the legal implications. The website, romneytaxplan.com, is a product of the Democratic National Committee. Yet the website conspicuously carries the Romney campaign logo and uses the Romney campaign’s slogan and adopted typestyle. So, is there a trademark problem?

Yes and no.

This is a good example of why it is so important in evaluating intellectual property problems to not only apply the blackletter law, but to also ask the practical question: Would this plaintiff sue?

Trademark law should generously protect parody uses of trademarks. Yet it doesn’t always. Consider this parody ad that appeared in a humor magazine called Snickers:

One taste and you'll drink it oily. Michelob Oily.

The case was Anheuser-Busch, Inc. v. Balducci Publications, 28 F. 3d 769 (8th Cir. 1994). Anheuser-Busch, brewers of Michelob, sued for trademark infringement and trademark dilution. The federal district court dismssed the case, but the Eighth Circuit Court of Appeals reversed, holding that the brewery could continue on with its action. I seriously disagree with that case. And there several cases upholding dismissals in the realm of trademark parody. But the Anheuser-Busch case is still, regrettably, good law.

There’s also the case the U.S. Chamber of Commerce pursued against a prankster group, The Yes Men, who produced a faked Chamber of Commerce press release and website to go along with a fake press conference they held about support for climate change legislation.

The fact is, the Romney campaign can sue the DNC and the case would have some legs.

But will they?

No way.

There’s no way the Romney campaign is going to draw attention to the website and look humorless and loser-y by filing suit. Or even threatening. So it’s a good call by the DNC to ignore precedent that points to a potential for legal liability. Calculated risk-taking is often the right prescription when advising clients about IP liability concerns.

Australia’s Attempts to Curtail Twitter Bullies Ineffectual

Wednesday, September 19th, 2012

The Canberra Times is reporting that the leader of New South Wales is asking the Australian federal government for tighter controls on what are called Twitter “trolls.”

The request is in response to an incident in which a star rugby player received an anonymous vulgar Tweet regarding his mother, who died of pancreatic cancer.

To put this in context, online abuses that get almost universal disapproval here in the United States – but that are protected speech under the U.S. Constitution – are actually out of bounds under Australian law, according to the newspaper:

A Twitter user or troll found to ”menace, harass or cause offence” using the social networking medium could be jailed for up to three years.

A person can be prosecuted under this section if they use a ”carriage service” – essentially, any communication device – to pressure another person, in a way that would be regarded by ”reasonable persons” as being ”menacing, harassing, or offensive”.

There are also laws at state level that can be used to stamp out offensive online behaviour.

But there’s one major caveat. Because these “trolls” set up bogus accounts to do their dirty deeds and then deactivate them quickly, it seems that no one has actually been prosecuted for their Twitter behavior.

Apple’s Victory Over Samsung is Bad for Bloggers and Blog Freedom

Friday, August 24th, 2012

Apple won huge today in its patent battle with Samsung over smartphones (Wired).

It’s a pretty dark day for the net.

While most of the chatter at this point seems to be about how this is likely to raise the price of your smartphone (it is) or make it less good (true also), there are even more important stakes: This is about free expression in the United States.

Here’s the problem: Apple doesn’t just make great phones and tablets that are expensive, Apple makes phones and tablets that censor content.

Apple has shown consistent willingness to use its power as the holder of the keys to the hardware and the operating system to lock out content creators it doesn’t approve of. Now that Apple is able to use the patent law to snuff out competition, and now that phones are one of the most important ways in which we communicate today, Apple has become a real threat to free speech.

Assuming we have a strong open-source ecosystem, as we did with Android up to this point, if you didn’t like Apple’s censorship, then you could always just walk away. Depending on what flows from this verdict, that ability to walk away may no longer be a practical alternative.

If Apple becomes essentially the only game in town for decent smartphones, then when you are away from a computer and alone with your phone, you’ll get to see and say what Apple says you can see and say. That would be a tragedy.

Memo to the appellate lawyers for Samsung: Consider briefing a First Amendment angle here.

Facebook Posts Get Former Marine Held for Month in Psych Ward

Thursday, August 23rd, 2012

A former Marine, Brandon Raub, was recently detained because of posts made on his Facebook account referencing a coming “civil war,” saying he was “done waiting,” and quoting a rap lyric, “Sharpen up my axe, I’m here to sever heads.”

Raub was taken into custody in this week in Virginia after being questioned by FBI and Secret Service agents. The latest is that after a hearing, Raub had been ordered held for an additional 30 days in a psychiatric ward.

For background, you can read the news story on HuffPo and find the essential facts and Mike Masnick’s commentary on TechDirt.

I actually have some experience with the legal procedures involved in detaining persons for psychiatric reasons. One summer in law school, I had a short externship with the Mental Hygiene Legal Service in the basement of the Manhattan Psychiatric Center on Wards Island in New York. (And let me say that it was an incredible experience, and I found that the attorneys down there providing legal services to patients were some of the quickest, smartest, and most impressive attorneys I have every worked with.)

So let me offer something from a mental-health-law perspective.

The Raub case has people concerned that online posts espousing conspiracy theories and radical leanings can cause a person to be locked up. And, in a sense, that’s what happened here. But once a person gets into the mental health system, it generally becomes a matter for physicians. Physicians aren’t legally able to deprive someone of their freedom, at least not beyond emergency circumstances on a short-term basis. Persons suspected of being mentally incompetent and dangerous are entitled to due process.

The due process that patients get is usually get that in the form of a hearing in which a judge listens to testimony of one or more physicians opining as to the psychiatric state of the patient. You might be surprised how smoothly this goes for the state. This is not like a trial. There is no jury, and the evidentiary standards are very relaxed. The state can use hearsay evidence to commit someone involuntarily, since they get it in as the basis for the psychiatrist’s expert opinion.

The whole field of mental health commitment is a fascinating one legally, and it raise a host of due process concerns that should make just about everyone uncomfortable. That’s not to say that the system is bad – like so much under our system of law, it reflects a balance between the need to uphold rights and freedoms and the need to prevent violence. It’s just to say that, like much else in law, it ought to make one uncomfortable.

So, with that background, I’m guessing that the Raub case is more about physicians deciding Raub needs to be held rather than it is about the government taking action against anti-government speech. Now, I should note that the story of physicians have tremendous power, mediated through court process, to deprive people of their freedom is not a new story – but it is a compelling one.

Yet because it brings mental-health law to bear on blogging, the Raub case remains one worth watching. There is no doubt that there is power here that could be abused. Maybe Raub is a radical whose speech is being shut down in violation of principles of free expression. Maybe he needs medical treatment. Of course, it’s very possible both are true at the same time.

L.A. Times’ Dan Turner Defends Anonymous Commenters and Dares the Fourth Wall

Monday, July 16th, 2012

Dan Turner has written an interesting piece in the Los Angeles Times about a lawsuit brought by a local Idaho political figure against an anonymous blog commenter.

Tina Jacobson, Chair of the Republican Central Committee of Kootenai County is pursuing the defamation suit against “Almostinnocentbystander,” who posted to the Huckleberries Online blog of Coeur d’Alene’s Spokesman-Review. The comment implied that Jacobson embezzled $10,000 from the Republican Party by stuffing it in her blouse.

Turner, a traditional journalist who has been with the L.A. Times editorial team since 2004, argues the case for non-traditional media participants. His argument implies that since anonymous web commenters ought to be taken less seriously than establishment journalists, they correspondingly ought to be deserving of more free-expression deference, not less:

“[O]ther cases seem to have clarified that Web readers don’t have the same 1st Amendment protections as journalists or the anonymous sources who provide information to journalists in the course of reporting. Yet if readers don’t have the same protections as news writers or sources, they also don’t have the same impact. Is it reasonable to claim you suffered damages because of something some nameless crank wrote about you on a blog, especially if you’re a public figure? Does the community at large take Web comments seriously enough that they could really damage a person’s reputation?”

To punctuate his argument, he dares the fourth wall.

“Readers: If you disagree, and want to inform me where I can stow my opinions, that’s OK. I promise not to sue.”

Hmmm. No one bit. Just four comments, all of them tré civil.

Weibo.com Debuts “Truth” Point System

Wednesday, June 20th, 2012

Weibo.com logoSina Weibo – China’s Twitter-like microblogging site – has created a new point system to extend Chinese government influence over what is and is not deemed “true.” New guidelines forbid communicating content considered “untrue,” or which is deemed to “harm national unity,” or “destroy societal stability.”

This sort of speech has long been illegal in China. But with Sina Weibo’s burgeoning 300 million users, website policy may have more reach than the criminal law.

When creating an account on the site, which is also known as Weibo.com, a user gets 80 points of credibility, or 100 points if the user plugs in a government-assigned ID number to create the account and links to a cellphone. Then, whenever the Sina Weibo user communicates something deemed “untrue,” points are deducted. The more people to whom the “falsehood” is communicated, the more points are deducted. For instance, spreading a “falsehood” to more than a thousand other users results in a deduction of 10 points and a 15-day account suspension. Users can gain points by staying in compliance with government censorship policies. Once the points fall below 60, the user is deemed “low credit.” Once the points get to zero, the account is closed.

Sina Weibo has been a key means of the dissemination of information about disasters and government scandals that the Chinese government has tried to play down, deny, or bury. This new point system will presumably cause Weibo users to self-censor to avoid account closure, helping to allow the Chinese government to bring social media to heel.

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Wanting a Chance to Be Heard in New Trade Negotiations

Friday, May 11th, 2012

The Office of the U.S. Trade Representative is conducting closed-door negotiations for a new trade deal involving intellectual property – the Trans-Pacific Partnership Agreement. Big Hollywood and Big Pharma are involved and are allowed to see negotiation documents. The public is not. Once the deal is concluded, it could bind Congress to change IP law and restrict free-speech, fair-use, and access-to-information rights.

In a brash move snubbing the lobbyist-challenged public, the Office of the U.S. Trade Representative decided to cancel a very limited opportunity for people to voice their concerns at a “stakeholder” meeting.

The following is an abridged version of a letter to the signed by many legal academics to the U.S. Trade Representative, Ambassador Ron Kirk.

The letter was written by law professors David S. Levine of Elon, Christopher Jon Sprigman of UVA, and Sean Flynn of American U.

Dear Ambassador Kirk:

We write as legal academics from the US and current or potential future Trans-Pacific Partnership Agreement (TPP) member countries to express our profound concern and disappointment at the lack of public participation, transparency and open government processes in the negotiation of the intellectual property chapter of the Trans-Pacific Partnership Agreement (TPP). We are particularly and specifically concerned that the United States Trade Representative (USTR) took the opportunity of its hosting of the latest round of negotiations in Dallas, Texas, to begin this week, to further restrict public involvement in the negotiations by eliminating the full-day stakeholder forums that have been hosted at other rounds. We call on the USTR and all TPP negotiating countries to reverse course and work instead to expand, rather than contract, the opportunities for public engagement in the formation of the TPP’s intellectual property chapter.

At a time when the last international intellectual property law to be negotiated under a similar process, the Anti-Counterfeiting Trade Agreement, teeters on the edge of rejection by the European Parliament in large part because of the loss of faith in its secretive process demonstrated by hundreds of thousands of marchers across Europe, the move to scale back participation in the TPP appears highly unwise and counterproductive. The functional and theoretical impact of the lack of transparency and accountability in the TPP and other trade negotiations institutionalizes the kind of process that the late Senator Daniel Patrick Moynihan criticized as policy making through “ignorant armies clash[ing] by night.” This is no way to build support for a broad reaching new international law that will constrain democratic law making over intellectual property matters in the US and abroad, particularly in an era of massive and rapid technological change that is testing the bounds of our current policy framework.

Our first and most important suggestion is to immediately begin a policy of releasing to the public the kind of reports on US positions and proposals on intellectual property matters that are currently given only to Industry Trade Advisory Committee members under confidentiality agreements. The USTR has previously refused to share its own proposals with its own citizenry claiming that, under the Freedom of Information Act (FOIA), to do so would damage the national security of the United States. …

Our concerns flow from the now-established observation that “trade” agreements no longer focus exclusively, or perhaps even predominantly, on the regulation of trade. Rather, the agreements increasingly propose international law standards that bind the legislative branch to change, or lock in place, domestic regulatory decisions. …

Unfortunately, there is little about the TPP negotiating process that is open to the broad range of inputs that would be reflected in domestic policy making. There has been no publicly released text of what USTR is demanding in these negotiations, as there would be in policy making by regulation, in Congress or in multilateral forums. Reviews of leaked proposals show that the US is pushing numerous standards that are beyond those included in any past (i.e. publicly released) agreement and that could require changes in current US statutory law. Reviews also show that the US proposal is manifestly unbalanced – it predominantly proposes increases in proprietor rights, with no effort to expand the limitations and exceptions to such rights that are needed in the US and abroad to serve the public interest. …

The unbalanced product results from an unbalanced process. The only private individuals in the US who have ongoing access to the US proposals on intellectual property matters are on an Industry Trade Advisory Committee (ITAC) which is dominated by brand name pharmaceutical manufacturers and the Hollywood entertainment industry. There is no representation on this committee for consumers, libraries, students, health advocacy or patient groups, or others users of intellectual property, and minimal representation of other affected businesses, such as generic drug manufacturers or internet service providers. …

All of the above makes the most recent further withdrawal from the TPP negotiation of a limited participation venue particularly disturbing. … While far from ideal for all involved, including the USTR and its ITAC advisors, this mechanism at least allowed for some exchange, even if that exchange was fundamentally flawed and artificially limited in value because of the information-disparity problems discussed above. In the place of these full day open forums in Dallas, USTR has channeled stakeholder input into a 4-hour mid-day (10:30am-2:30pm, i.e. over the lunch hour) exhibit hall for stakeholder tables. There will be no opportunity, as in the past, to speak to assembled negotiators through presentations. …

Conviction for Insulting Islam in Austria

Monday, January 30th, 2012

daylight exterior

Pallas Athena fountain in front of the Parliament Building in Vienna, Austria (Photo: CIA)

An Austrian appeals court has upheld the conviction of Elisabeth Sabaditsch-Wolff for insulting Islam.

This is a case that came down just before the New Year. I think it’s worth discussing here because blogs, of course, cross borders. American bloggers are likely to think that American concepts of free expression are likely to be shared with other industrialized Western countries. But that’s not true at all.

Eugene Volokh on the Volokh Conspiracy explains the legal angle with a post that provides a quick look at recent blasphemy prosecutions around Europe, as well as a discussion of America’s history of criminalizing blasphemy back in the early 1800s.

As far as the prosecution of Sabaditsch-Wolff, the defendant herself explains what happened in an interview:

What was the reason for this conviction, you may ask. Well, during the course of my seminars, I mentioned the choking EU directive “Framework decision on combating racism and xenophobia,” and in order to illustrate my point I told the audience about a conversation I had with my sister and how she believed that one should find a different word for Mohammed’s actions with Aisha. I said, “How does one name what he did if not call it pedophilia?” And this sentence got me convicted, for I am allowed by law to say that Mohammed had sex with a young girl, but I may not qualify this behavior as this is deemed “excessive” and thus denigrating.

It would be unthinkable for anyone in the United States to get in legal trouble for something like this. But, as Commenter Parker said in the thread after Volokh’s post, “This is Europe we are speaking of. Europe has a different idea of human rights and especially a different idea of the freedom of speech.”

True that. With the similarity in the media, press, and arts between the U.S. and Europe, you could easily assume that what’s sacrosanct as a matter of American expressive freedom would be protected in Europe. Just about anyone could guess that there’s no right to bear arms across Europe. But with free speech, you would be forgiven for thinking they are basically the same. And it’s probably true that 99% of what is protected in America is protected in EU countries. But once you get toward the fringes, you’ll realize that freedom of expression in Europe is actually very different. Free speech is at the apex of American freedoms and values. In the European scheme of values, there is the idea that free speech must often be subservient in the hierarchy of human rights. The Sabaditsch-Wolff case illustrates, I think, the European impulse that the right to be free from religious insult is considered as or more important than the right to be free to say whatever you want.

Blackouts Tomorrow for SOPA and PIPA

Tuesday, January 17th, 2012

Wikipedia is planning to blackout its whole site tomorrow as a protest to SOPA and PIPA – those internet censorship-in-the-name-of-fighting-intellectual-property-piracy bills on Capitol Hill. I know other websites are planning or contemplating the same.

I think I’ll do the same here on Blog Law Blog. I just have to figure out how to do it in terms of the code on the back end. If you are planning to join in, read up on how to do it the right way so you stay friendly to search engines.

White House Blogs in Response to Anti-SOPA Petitions

Monday, January 16th, 2012

The White House has responded to online petitioning done by opponents of SOPA. In a blog post, IP czar Victoria Espinel, U.S. CTO Aneesh Chopra, and national cybersecurity coordinator Howard Schmidt wrote:

While we believe that online piracy by foreign websites is a serious problem that requires a serious legislative response, we will not support legislation that reduces freedom of expression, increases cybersecurity risk, or undermines the dynamic, innovative global Internet.

That’s very good to hear.

Review of a Review of 2011

Monday, January 9th, 2012

2011As Blog Law Blog continues it’s look back at 2011, I’d like to note a very good wrap-up article over at PBS’s MediaShift:

The article covers the principal stories in media law over the past year, and it does a nice job of hitting the important topics, but the legal analysis isn’t always right on. I’ll just look at one example – what the article lists as the number-one topic in media law over 2011: “‘Wiretapping’ the Police.”

“Wiretapping” sounds like it should involve a man in a headset sitting in a van listening in on your telephone calls. But the legal definition is often far broader — as many journalists and ordinary citizens found out after being charged with a felony for simply filming a few seconds of police activity in public.

It’s true that laws against making surreptitious audio recordings do go well beyond classic “wiretapping,” but I’m aware of no law that purports to make criminal “filming” police activity taking place in public. The an Illinois statute mentioned in the article prohibits recording audio of any conversation without the consent of all persons speaking. That was used against someone with a video camera that was also capturing sound, but the case was ultimately dropped, and it’s not clear that any recent prosecutions have happened under similar circumstances.

In general, however, the problem is not laws themselves – the problem is police arresting people for conduct that does not violate any law.

For instance, when attorney Simon Glik used his cell phone to record Boston Police officers arresting a homeless man in a public park, the officers arrested Glik under a law (Mass. Gen. Laws ch. 272, § 99) that prohibits “secretly” recording wire or oral communications. Glik wasn’t being secret. He was recording openly. His conduct didn’t violate the law. The problem there was that police were arresting Glik for doing something that wasn’t against the law. Indeed, the charges were soon dismissed. (Post-dismissal, Glik filed a lawsuit that successfully established constitutional rights to make such recordings as well.)

Another instance of this coming up – not mentioned in the PBS article – was the Baltimore Police’s action against Christopher Sharp, who recorded the arrest and apparent abuse of a woman at the Preakness Stakes. The problem there was not that Maryland law prohibited Sharp’s conduct – it didn’t. The problem was that the police seized Sharp’s cellphone on the spot and deleted a bunch of videos (including personal ones as well as the one of the police). At the time, one police officer made the completely absurd claim that it is “illegal to record anybody’s voice or anything else in the state of Maryland.” But, as I explained, that’s not the law.

That’s why the article kind of misses the point when it says:

The importance of the wiretapping cases cannot be overstated. If the government is permitted to prosecute citizens for collecting and disseminating accurate information about acts of official misconduct, specifically when those acts occur in a public place, both citizen and professional journalism — and by extension the public at large — will suffer greatly.

The problem is not the prosecutions. The prosecutions almost never happen. The problem is the police acting lawlessly on the scene.

Newton’s Third Law of Intellectual Property

Thursday, December 29th, 2011

Test firing of rocket engine with blue flamesIn Monday’s post, I noted that Dutch M.P. Marietje Schaake linked America’s proposed Stop Online Piracy Act (SOPA) with China’s censorship of political expression (a point also picked up by Techdirt’s Glyn Moody.)

So, is it really fair to equate shutting off internet access because of claims of intellectual-property infringement with shutting off internet access because of unapproved political expression? Yes it is. Here’s why.

It’s what I call Newton’s Third Law of Intellectual Property. This is actually my thing, not Isaac Newton’s. But it is analogous to Newton’s Third Law of Motion.

In physics, Newton’s famous Third Law is that for every action there is an equal and opposite reaction.

My law, is that for every intellectual property entitlement, there is an equal and opposite reduction in freedom.

So, if someone has a trademark entitlement with regard to a certain word or phrase, the extent of that right is exactly coextensive with the public’s lost ability to legally use that word or phrase. Same for copyright: A copyright over a musical melody means a loss of freedom of everyone else to play that melody.

I don’t mean for Newton’s Third Law of IP to impugn all intellectual property. Just because something reduces freedom doesn’t mean it’s unjustified. But it does mean that there is an inescapable tradeoff. When one person gains an IP right, everyone else loses a freedom. Perhaps the loss of freedom is worth it for the good that the IP entitlement does, such as encouraging innovation. But it is intellectually dishonest to argue or imply that intellectual property entitlements don’t come without a surrender of some amount of liberty.

Image: NASA

How Can You Teach Free Speech’s Limits if You Don’t Understand Them Yourself?

Wednesday, December 28th, 2011
miniaturized version of portion of front page of website

From the front page of American Justice Associates' website

As a postscript to yesterday’s post about court-ordered free-speech lessons for Occupy L.A. protesters, let’s look at one more heaping spoonful of irony.

Jeffrey P. Hermes at CMLP blog pointed out that American Justice Associates, who has been tapped to run the course, bills itself on its website as “a supportive arm of the Los Angeles City Attorney’s Office since 1995.” Yet, as Hermes notes, the company is a private firm and not a branch of the government.

That’s pretty funny, because you imagine that one of the first things they will say in this free-speech class is that the First Amendment’s guarantee of free expression is not absolute. And that’s true. Of course, one of the hallowed examples of speech that’s not entitled to protection is false advertising. There’s federal and California state law that prohibits false statements in advertising. And saying your organization is an “arm” of the city attorney’s office, when it’s really a private contractor, sure seems false to me.

Patent diagram of a crutchBut I’m going to try to be thorough and fair before I accuse anyone of making false and misleading statements.

I’ll begin with the obvious: The word “arm,” when used in conjunction with an organization, is ordinarily understood to mean a branch of the organization.

Now, American Justice Associates could argue that you’ve got to look at the fact that they use the word “arm” in context with the word “supportive.” They claim to be “a supportive arm.” But then we have to ask, what the heck is a “supportive arm” anyway?

If “supportive arm” doesn’t mean a helpful branch of the government, then it’s oxymoronic. Arms don’t support. Okay, well, I guess arms are supportive for someone who is down on their hands and knees. So is that what American Justice Associates is saying about justice in Los Angeles? That it’s crawling on the floor? That’s pretty rough.

So, I have to conclude that “arm,” as American Justice Associates uses it, is false and misleading.

I think what they probably should revise it to is “crutch”: American Justice Associates – The Crutch of the LA City Attorney’s Office. That’s what they seem to mean when they put themselves out there as the solution to a justice system too overburdened to try defendants and put the guilty ones in jail.

Liberty L.A. Style: Free Speech School or Jail

Tuesday, December 27th, 2011

View of the LA City Hall skyscraper under a blue skyL.A. City Hall (Photo: EEJ)

Jeffrey P. Hermes at the Citizen Media Law Project Blog has spotted a small volcano of irony erupting from Los Angeles: The L.A. City Attorney’s Office has announced that it won’t press charges against Occupy L.A. protesters arrested on low-level misdemeanor offenses if they complete a free-speech course.

But freedom isn’t free: The lessons for the pre-trial diversion program will be supplied by a private-contractor, American Justice Associates, which will charge $355 per person for the course. Checks can be made out to “The One Percent, LLC.”

It’s a move Hermes calls “a dramatic, last-minute effort to win the prize for ‘Most Obnoxious Law Enforcement Tactic of the Year.’” Hmmm. Well put. As he explains:

Let’s reflect for a moment on this one, shall we? … This is, after all, the city that was on the wrong end of a $1.7 million verdict after police assaulted a journalist covering a rally in 2007, and attempted to control coverage of Occupy L.A. by excluding all media except a hand-picked pool of reporters. And let us not forget Special Order No. 11, which among other things directs the LAPD to file a “Suspicious Activity Report” about any photographer who takes pictures “with no apparent esthetic value.”

But there’s another side to this. As a Los Angeles Times article explains, the city wants to save on the expense of prosecuting the hundreds of people it’s rounded up. Fair enough. We all know how California is hurting for money. (Actually, in recent years the office has suffered a 25% budget reduction.)

Look, I think I’ve got an easy fix: Just require Occupy protesters to complete community service by teaching the class themselves, with LAPD higher-ups enrolled as students.

Dutch Conference on Internet Freedom Highlights Plight of Bloggers Under Oppressive Regimes

Monday, December 26th, 2011

Logo for Freedom Online 8 & 9 December 2011 Joint Action for Free Expression on the InternetEarlier this month the Netherlands’ Ministry of Foreign Affairs hosted a conference called Freedom Online: Joint Action for Free Expression on the Internet. The conference was attended by more than 20 countries and NGOs, including the United States, which sent Secretary of State Hilary Clinton.

One particular subject of discussion was the need to help bloggers in countries ruled by oppressive regimes. There’s a good write up by Toby Sterling of the Associated Press: EU official: Protect bloggers from repressive governments.

Secretary Clinton, who opened the conference, issuing a call for companies to refuse to sell surveillance technologies to repressive governments. It’s wonderful to see the U.S. take a leadership stance on internet freedom, but there’s some irony as well.

Syrian blogger Amjad Baiazy, who was arrested and tortured earlier this year because of his online writing, noted that Western companies surveillance system that Syria’s been using to ferret out internet dissidents.

And Dutch member of parliament Marietje Schaake, while dittoing Clinton’s call for restraint among tech companies, took the U.S. to task for Congressional consideration of SOPA (the proposed Stop Online Piracy Act,” which, she said, “give great incentives to governments like China to do the same,” blocking access to expression they find inappropriate.

Important points, all around.

This is a Key Week in the Fight Against SOPA

Tuesday, December 13th, 2011

This is a key week in the fight against SOPA – a sledgehammer law, ostensibly to fight copyright infringement, that would be a disaster for bloggers and for the internet in general. The bill is approaching a vote in the House Judiciary Committee. Please consider taking some time learn about the issue, and if your member of Congress is on the House Judiciary Committee (list below), please write them!

The Stanford Law School Center for Internet and Society (where I am an affiliate scholar), recently hosted a panel discussion called What’s Wrong with SOPA? You can now watch the video of the event.

Julie Ahrens of CIS did a really nice post explaining concisely why SOPA is such a bad idea, broken down into five points:

1. SOPA violates due process.
2. SOPA censors lawful speech.
3. SOPA breaks the Internet’s infrastructure.
4. SOPA blows up the safe harbor.
5. SOPA kills innovation.

She provides an explanation and cites to further reading for each.

Here is the membership of the House Judiciary Committee. If your rep is on here, please call and e-mail!

Adams – (R) Florida, 24th
Amodei – (R) Nevada, 2nd
Berman – (D) California, 28th
Chabot – (R) Ohio, 1st
Chaffetz – (R) Utah, 3rd
Chu – (D) California, 32nd
Coble – (R) North Carolina, 6th
Cohen – (D) Tennessee, 9th
Conyers Jr. – Ranking Member – (D) Michigan, 14th
Deutch – (D) Florida, 19th
Forbes – (R) Virginia, 4th
Franks – (R) Arizona, 2nd
Gallegly – (R) California, 24th
Gohmert – (R) Texas, 1st
Goodlatte – (R) Virginia, 6th
Gowdy – (R) South Carolina, 4th
Griffin – (R) Arkansas, 2nd
Issa – (R) California, 49th
Jackson Lee – (D) Texas, 18th
Johnson – (D) Georgia, 4th
Jordan – (R) Ohio, 4th
King – (R) Iowa, 5th
Lofgren – (D) California, 16th
Lungren – (R) California, 3rd
Marino – (R) Pennsylvania, 10th
Nadler – (D) New York, 8th
Pence – (R) Indiana, 6th
Pierluisi – (D) Puerto Rico, Resident Commissioner
Poe – (R) Texas, 2nd
Polis – (D) Colorado, 2nd
Quayle – (R) Arizona, 3rd
Quigley – (D) Illinois, 5th
Ross – (R) Florida, 12th
S?nchez – (D) California, 39th
Scott – (D) Virginia, 3rd
Sensenbrenner Jr. – (R) Wisconsin, 5th
Smith – Chairman – (R) Texas, 21st
Waters – (D) California, 35th
Watt – (D) North Carolina, 12th

Lidsky: Incendiary Speech and Social Media

Wednesday, November 23rd, 2011

Lyrissa Barnett Lidsky, a professor at the University of Florida’s Levin College of Law has posted to SSRN Incendiary Speech and Social Media, published in the Texas Tech Law Review. Here is the abstract:

Incidents illustrating the incendiary capacity of social media have rekindled concerns about the “mismatch” between existing doctrinal categories and new types of dangerous speech. This Essay examines two such incidents, one in which an offensive tweet and YouTube video led a hostile audience to riot and murder, and the other in which a blogger urged his nameless, faceless audience to murder federal judges. One incident resulted in liability for the speaker, even though no violence occurred; the other did not lead to liability for the speaker even though at least thirty people died as a result of his words. An examination of both incidents reveals flaws in existing First Amendment doctrines. In particular, this examination raises questions about whether underlying assumptions made by current doctrine concerning how audiences respond to incitement, threats, or fighting words are confounded by the new reality social media create.

My Citizen Journalism Rights Respected Just Now

Friday, November 18th, 2011

On my drive home here in Grand Forks, North Dakota I came across the scene of a bad car accident. Oldsmobile sedan vs. GMC Jimmy, and everybody lost. I didn’t witness the accident, but I imagine that speeding, ice, and inattentive driving were factors.

I decided to take my citizen-journalist rights for a try-out with my Canon SLR camera with a big 70-200mm telephoto lens. These pictures were taken about 35 minutes ago at about 4:40 p.m. CST. I am very happy to report that police and fire officials treated me courteously.

Car accident scene with firefighters and police officer standing nearby

Blue GMC Jimmy SUV with hood open and severe damage to front driver side

Canadian Supreme Court OK’s Hyperlinking to Defamation

Monday, November 14th, 2011

Front of Supreme Court of Canada courthouse on sunny dayThe Supreme Court of Canada courthouse in Ottawa. (Photo by Philippe Landreville, courtesy of the
SCC)

The Supreme Court of Canada has cleared bloggers from any feared liability for linking to defamatory content.

In Crookes v. Newton, a 6-3 decision held that a hyperlink to defamatory content does not make the linker a “publisher” of the defamatory content, which means that the linker cannot then be sued for defamation. Signaling agreement with the linked-to defamation doesn’t expose the linker to defamation either. Linkers can only be liable for libel if they use the link in such a way that they, themselves, end up conveying a defamatory communication.

Paul Schabas and Jon Goheen on the Inforrm blog have written a good synopsis of the case. In their words:

According to the majority, virtually any text accompanying a hyperlink to defamatory material will not lead to liability unless the text itself is defamatory. Even where a party indicates an unequivocal and positive adoption of the libel, as in the example given by the trial judge, there will be no defamation.

Also, Media Law Prof Blog has posted a long excerpt of the decision.

Rights of Photojournalists to Take Photos in Public

Thursday, November 10th, 2011

People who like to take random photos in public places (like these unfortunate ACLU plaintiffs) are subject to harassment by law enforcement. They shouldn’t be. But they are.

While there is a fair amount of material providing general legal guidance focused on the writing side of blogging (such as at CMLP and EFF), there is a paucity of material advising you on what you can and can’t get away with using a camera.

The best resource I’ve found – although about six years old – is this legal memorandum [pdf] from Kurt Wimmer and John Blevins at the law firm of Covington & Burling, done for the National Press Photographers Association. From the memo:

In summary, we find that there is no federal law that justifies the broad prohibitions that are being imposed on photography in public areas. There is no new federal law, including the Patriot Act, that restricts photography of public buildings and installations on the basis of concerns over terrorism. Restrictions of photojournalism that proceed on this basis may constitute violations of journalists’ First Amendment right to gather news.

I’ll think I’ll print out a copy and put it in my camera bag.

More:

ACLU Sues to Stop Sheriff Harassment of Photographers

Wednesday, November 9th, 2011

Mosaic of photographs of random thingsSome of the thousands of photographs I’ve taken which, I am sure, the LASD would consider to be without aesthetic value. (More where those came from on Flickr.)

I’m always taking photos of random things. I think it’s fun. And photos are valuable for illustrating blog posts, among other things.

But a lot of law enforcement agencies consider photography to be a “suspicious activity.” You can be seriously harassed for street photography.

Happily, the ACLU is stepping in to do something about it. The ACLU is now suing to challenge a policy of the Los Angeles Sheriff’s Department that considers as “terrorism-related” the activity of taking “pictures or video footage with no apparent esthetic value, i.e., camera angles, security equipment, security personnel, traffic lights, building entrances, etc.”

If I had a buck for every photo I’ve taken of “security equipment, security personnel, traffic lights, building entrances, etc.,” then I would have a huge wad of cash. Enough to buy a full-frame digital SLR and maybe even get a sweet L-series 400mm telephoto lens.

And I’d run out and use it to take pictures of traffic lights, building entrances, and other stuff like that. And then I’d probably have to call the ACLU for help, because I could get into trouble like their latest plaintiffs Shane Quentin and Shawn Nee.

Quentin was targeted when he was taking photographs of refineries at night in south Los Angeles at night. (I’ve been meaning to do this myself the next time have some extra time down there. The refineries at night are stunning – fortresses of light, flame, fog, and exhaust. Highly photogenic in my book.) Well for his efforts, Quentin was frisked and placed in the back of squad car. He was kept there for about 45 minutes before he was let go.

It could have been me.

Nee’s misadventures are even harder to fathom. LASD deputies detained and searched plaintiff Shawn Nee when he was taking pictures turnstiles at an L.A. Metro station. This gives you an idea of where they were at: They asked Nee if he was planning to sell the photos to al-Qaeda.

Really. I’m not making that up. I mean, not only are they imply that he was in league with al-Qaeda, but that he was doing it for the money.

Then the LASD officers threatened to stick Nee on an FBI “hit list.” Okay, that’s absurd. Everyone who watches USA network knows that the CIA is in charge of assassinating terrorists on U.S. soil. But I digress.

On a separate occasion, sheriff’s deputies ordered Nee to refrain from taking photos along the Hollywood Walk of Fame at the intersection of Hollywood and Vine, outside the W Hotel. I mean, holy heck. If you aren’t safe taking pictures there – smack-dab in the middle of freaking Hollywood – where are you?

You can tell I’m upset. I’m using far too much italics.

The ACLU’s complaint [pdf], unlike this blog post, is a model of legal writing. For one, it’s written with a literary flair, yet it refrains from crossing the line into floweriness. Like this:

Photography is not a crime; it is a means of artistic expression. In public spaces, on public streets and from public sidewalks, no law bars Los Angeles residents and visitors from photographing the world around them, from documenting their own lives or using their lenses to find the sublime in the commonplace.

Nicely said. The complaint also is filled with footnoted references to essays, art reviews, and books. It’s very well-researched. A model pleading. Kudos to the ACLU. What’s more, this is a lawsuit that is badly needed to push back against an unhealthy trend. As the complaint says:

Over the past several years, law enforcement agencies across the country have implemented “suspicious activity reporting” programs, under which officers are trained to report certain categories of behavior believed to be potential indicators of terrorism. Many departments include photography as one such ‘suspicious activity’ that should be reported.

Mickey H. Osterreicher said in a letter to L.A. Sheriff Lee Baca that the aim is to get “at least” the L.A. Sheriff’s Department to revise departmental policy and instruct deputies correspondingly.

“Safety and security concerns should not be used as a pretext to chill free speech and expression or to impede the ability to gather news,” Osterreicher said.

More:

In Newly “Free” Egypt, Facebooker Gets Three Years Behind Bars for Insulting Islam

Monday, November 7th, 2011

View of Cairo and the River Nile at duskCairo and the River Nile.
(Image: CIA)

The engine of the Arabspring revolution in Egypt was social media, and its fuel was free speech. But sadly, Egypt continues to be a leader in cyberoppression, even after the ouster of strongman Hosni Mubarak.

Agence France Press has reported that Egyptian Facebooker Ayman Yusef Mansur has been sentenced to three years in prison with hard labor because he “intentionally insulted the dignity of the Islamic religion and attacked it with insults and ridicule on Facebook,” according to Egypt’s official MENA news agency.

A court in Cairo determined that Mansur made insults “aimed at the Noble Koran, the true Islamic religion, the Prophet of Islam and his family and Muslims, in a scurrilous manner.”

What is not clear is exactly what Mansur wrote that got him in trouble.

Egypt’s constitution has been suspended since the military took control after Mubarak’s February ouster. Countrywide elections are slatted for November 28, and there are increasing concerns that Islamists will win handily, taking control of parliament and ensuring that a new constitution will uphold Islam as the primary source of law in the country. Presumably that means retaining religious-based restrictions on freedom of speech.

Freedom is a delicate, delicate thing. As hard as it was to get rid of Mubarak, it will be far harder still to win lasting freedoms.

(Ha’p Eugene Volokh,In Egypt, Three Years in Prison for “Insulting Islam”)