Tag Archives: i.speech & first amendment

McDonald’s “coke spoon” C&D

One might think it would sometimes be in the best interests of a corporation to take the high road, but McDonald’s has chosen to go for the glory. McD’s slapped a cease and desist letter on an art gallery selling “Cokespoon #2” — a gold-plated versions of a 1980s vintage McD’s coffee stirrer that was frequently used for white powder outside the context of coffee.

The C&D and response are posted by citizen-citizen.com in a really obnoxious flash format.

You can see the original and Cokespoon #2 on papermag 2/19.

press subpoenas in Watada case

In an interesting twist on press subpoenas, Army prosecutors have subpoenaed journalists to get them to vouch for published quotes — not source information or unpublished information. [SFgate 12/18.] The prosecutors hope to use the quotes to prosecute First Lt. Ehren Watada, who denounced the war on Iraq as illegal and refused to deploy.

Sarah Olson, an Oakland journalist who wrote about Watada, said she had no legal grounds to refuse but she noted that “If conscientious objectors know that they can be prosecuted for speaking to the press and that the press will participate in their prosecution, it stands to reason that they would think twice before being public about their positions.”

The subpoena requires not just an attestation but participation in a January 2007 hearing and the court-martial of Lt. Watada, under penalty of contempt of the military tribunal. Olson and the other journalists subpoenaed can be put in jail for refusing to comply.

One of the statements that Lt. Watada is being charged for is:

As I read about the level of deception the Bush administration used to initiate and process this war, I was shocked. I became ashamed of wearing the uniform. How can we wear something with such a time-honored tradition, knowing we waged war based on a misrepresentation and lies?’

You can look at each little skid on a slippery slope individually and note that it’s not that big a deal.

A failure of the public interest tech law community

From my perspective, the Section 230 (qualified by dicta) victory in Chicago Lawyers’ Committee for Civil Rights Under Law v. Craigslist (PDF), is fine, unsurprising, but a relief. But more importantly, to me, the case demonstrates a significant and ongoing failure of the public interest tech law community: Explaining to people outside our community why it is in the best interests of progressives and folks fighting discrimination to enable a robust sphere for communications.

For those not in the know, the CLCCRUL fights housing discrimination. One way they do it is by using laws that prevent the publication of discriminatory housing ads in, for instance, newspapers. The CLCCRUL filed suit against Craigslist for discriminatory housing ads that were posted on its website. Craigslist lets users post their own ads, and lets users “flag” other user-oriented content that is illegal for whatever reason, like the Fair Housing Act. It’s a largely automated and user-driven moderation process like many others on the Internet. In 1996, Congress passed Section 230 which protects Internet service providers (called “Online Content Services” or OCS’s) from liability as a “publisher” for their users’ content. Courts have pretty much uniformly read Section 230 as Congress exempting ISPs/bulletin boards and the like from any liability for their users’ messages (except IP which is explicitly exempted from S.230’s “safe harbor”). Legally, there isn’t much to the case, because Section 230 squarely applies. Emotionally, as a matter of justice, it seems to some to be a different matter.

Section 230, like copyright law, clickwrap clauses, reverse engineering, WIPO, Internet jurisdiction, and other such issues can seem pretty bloodless when you’re fighting for the right to housing, reproductive decision-making, and healthcare, or to end race discrimination, the death penalty, or torture. Social-change activists may humor us occasionally, but they don’t see those of us in the information activist community as really, truly, fighting for something that they should care about. They just don’t get it.

To me, these issues are fundamentally free expression issues — which, as Emma Goldman saw, underpin the right to advocate for every other right.

For Section 230, for instance: The Internet is the largest and most open platform for human communications that has ever existed. The technology needed to gain access to every other person on the Internet is increasingly affordable to everyone, with cell phone networks, free wireless municipal networks, cheap computers, and so on. People and “society” more generally are now learning to navigate and contribute to and draw from the increasingly vaster floods of knowledge. I believe that the transformative power of that access to knowledge offers humans the best opportunity yet to transcend the petty powers of principalities, the tyranny of learned prejudice, the prison of ignorance. The pen is mightier than the sword–it has the power to destroy fascism at its root.

And Section 230 is a critical piece of that. If you can’t speak because a gatekeeper controls the speech, and the gatekeeper could be subjected to liability under someone else’s local rules, then your ability to speak and access speech is set to the lowest common denominator available to all. A race to the bottom in terms of what’s allowed.

Permitting people to speak in untrammelled ways leads to offensive and arguably harmful speech. But if you create a chokepoint for speech on the greatest speech platform yet to exist, then others will be only too happy to use that chokepoint for their own agendas.

And it’s not just speech. The people that CLCCRUL is representing–anybody seeking housing, because everybody benefits from a non-discriminatory housing market–are the primary beneficiaries of an open, user-controlled housing information market. They have access to more postings and information. They don’t have to go through rental agents who may have secret or subconscious prejudices. They have the ability to flag biased postings and police the community, themselves. (It’s the ultimate form of community policing, and it works a hell of a lot better than any attempt at governmental regulation ever can.) And for a myriad of other reasons, an open, responsible-to-the-community, speech platform is better, both in the short-term and in the long-term, for people seeking housing and for people seeking an end to invidious discrimination of all kinds.

I haven’t even gotten to the real and qualitative differences between printing-press and broadcast media, and the Internet. But it’s a worthwhile exercise to look at the best arguments for regulating print and broadcast media, and assess how those arguments play out on the Internet. Defamation, for instance. One good reason for regulating print publishers of libel (defamation) more harshly than spoken publishers of libel (slander) is that print publishers have a powerful tool at their disposal that the victim of defamation may not: the ability to reach a mass audience relatively cheaply. How does that map to the Internet? Well, it turns out that in terms of being able to respond to the libelous speech, the Internet is a lot more like spoken word (slander) than it is like printing press or broadcast (defamation): It’s pretty easy to get access to the same forums & the ability to respond to the libelous speech. So, one could argue, libelous speech on the Internet is less harmful than libelous speech made on the radio station or in the local newspaper. The rationales for restricting publication in print newspapers may likewise apply differently in the Internet. This is a case that our community should be making, persuasively and directly, to communities that are seeking, for very good reasons, to regulate speech on the Internet.

… Anyway, rather than castigating or calling for Rule 11 sanctions against the CLCCRUL attorneys as a number of folks have done, I’d rather see us try to reach out to them to explain why it’s in the best interests of their clients to support Section 230 and craigslist, instead of attacking it. (I don’t mean CLCCRUL directly, btw; once you’re in litigation it’s difficult to shift gears. But other social-change activists.) Others, no doubt, can make different, better, or more persuasive arguments than I have. I hope they do. We in the public interest tech community have an affirmative responsibility to lay out these arguments, not just to ourselves, but to our activist allies, whoever they might be.

people take this IP stuff so seriously

An English IT firm fired a consultant after he commented on Grokster on BBC, and the firm had this to say:

“The decision to terminate his employment was made in order to defend our legitimate business interests. Mr Hanff has declared that he is opposed to copyright and intellectual property laws. Since much of our business is based around the protection of our copyright and intellectual property, we consider our dismissal of Mr Hanff entirely justified and appropriate.”

Techie fired over Grokster comments on BBC [silicon.com]

If the company fired him because he was using their resources to host his bittorrent site, that would be one thing. The article mentions that the MPAA is suing him for hosting a bittorrent site. But no, it appears from the company’s statement that it fired him for his “opposition to copyright and intellectual property laws”.

Based on this statement, it appears that Aldcliffe Computer Systems in Lancaster is “defend[ing] [its] legitimate business interests” by enforcing a thought code. That doesn’t sound like good business practice to me. The company is crafting a workforce of orthodox thinkers and yes-men. Who would want to work for a company that requires its employees to shape their personal beliefs in accord with whatever internal policies are being crafted that week?

Employers have successfully infiltrated the private lives of workers by requiring drug tests and monitoring email. But Aldcliffe Computer Systems thinks employers should also be able to colonize their minds.

I feel a science fiction story coming on …