Archive for August, 2012

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.

Feds’ Approval of Verizon Deal Bad for Consumers

Wednesday, August 22nd, 2012

A good article by my friend Troy Wolverton of the San Jose Mercury News about federal regulators’ approval of a joint venture by Verizon and multiple cable operators:

Approval of Verizon-cable agreement a bad deal for consumers

Such deals may make accessing the internet more difficult and more expensive.

Practical Advice for Protest Reporting from Web Chat with Law and Journalism Experts

Friday, August 17th, 2012

I attended yesterday’s web chat about reporting at political convention protests. The chat,
sponsored by Harvard’s Citizen Media Law Project, the International News Safety Institute, and the Free Press organization, was chock full of practical advice served up with a generous helping of what-it’s-like personal accounts.

Natasha Lennard, who has worked for the New York Times and now writes for Salon.com, described how she was among 700 people kettled and arrested in the Occupy Wall Street protests. She said that for the NYPD, if you are in the wrong place, it doesn’t matter if you are press.

“If you stick with the crowd which is what you feel you should do to get the story, you end up in a very precarious situation yourself,” Lennard said.

Andy Sellars, an attorney with Harvard Law School’s Berkman Center, made the point that when the police are ordering people to move, it helps in many cases to self-identify as a member of the press, but it might make reporting more difficult as you may wind up getting moved far away from the action.

For unaffiliated citizen journalists, Sellars said that it may be a good idea to use a homemade credential. But he warned not to copy anyone else’s credentials. Using credentials intended to look like they were issued by the police, for instance, may be unlawful in itself and, at any rate, is likely to make you a special target of for officers.

John Knefel, an independent journalist who has a radio show with his sister on Radio Dispatch, described his arrest at Occupy Wall Street. After being thrown to the ground, he was arrested and held for about 37 hours.

It was an ordeal, and Knefel singled out New York’s jail food for special scorn. While the arrest didn’t deter Knefel from attending and reporting from events, he said, it make him less likely to rush to a specific location where arrests were happening.

“Clearly it’s meant to have a chilling effect,” Knefel said. “That’s the goal here. It’s to make activists want to stay home. It’s to make journalists want to not cover things or to not cover them as directly or as intimately as they may want to.”

With a view toward the upcoming major-party political conventions in Charlotte, N.C. and Tampa, Fla., Sellars noted that local laws prohibit certain items. In Florida, prohibited items include tripods and bipods. There are also prohibitions on glass, ropes, and masks.

Natasha Lennard’s practical advice included going the site early to give yourself an internalized map of the relevant portions of the city. Knowing what side street you can duck into could help you avoid getting stuck, she said. She also rattled off a list of items to bring with you. She recommended packing milk of magnesia for cleaning away pepper spray, a bike helmet to wear if the batons come out, a bandana to pull out in the case of tear gas, and a lawyer’s phone number – inked on your forearm.

Lennard noted that you should not expect your cell phone to work if things get heated. Cell sites could get overloaded precisely when you most want to make a call or get information out.

Another web chat on the same topic is scheduled for Thursday, August 23 at 8 p.m. Eastern. To attend, go to the Free Press website. You don’t need to sign up in advance.

CMLP Hosting Talk on Reporting at the Political Conventions

Wednesday, August 15th, 2012

CMLP logoThe Citizen Media Law Project has announced that its Digital Media Law Project, along with the International News Safety Institute and an organization called “Free Press,” will be hosting live web chats about legal issues involved in doing reporting/blogging at protests of the Republican and Democratic national conventions. The talks will be tomorrow, August 16 at 7 p.m. (I’m guessing that means Eastern Time), and then again next Thursday, August 23 at 8 p.m.

CMLP notes that almost 90 people have been arrested in the United State while doing reporting at protests. The webcasts will include journalists relaying their personal experiences, presented along with legal analysis.

It’s free and there’s no advance signup necessary. Go to the Free Press website to participate.