Protect Your Wireless!

Wow, check out this article!  This seems crazy to me, not just the barbaric response of the police, but the fact that you can steal Internet by using a field expedient Pringles can antenna!

Use Defenses Hollow Promise After Safe Harbor!

The traditional copyright used defenses of de minimis use and Fair use are left a hollow promise in the wake of the DMCA safe harbor provision.  Although these defenses are still valid and relevant defenses in a court of law the problem is the vast majority of information removed from the internet in accordance with take-down notices never reaches the inside of a courtroom.  The moving parties are acutely aware of this statistic and as such they are none-too-shy in sending out take-down notices, and why should they be?  From their prospective the goal is the removal of the information which can be achieved by sending the notice to which the ISPs will almost certainly acquiesce.  That means to assert the defense the posting individual would have to drag themselves into the courtroom, but of course their confusion as to the extent of these defenses since they are judged on a balancing test without a bright line rule, is likely to exacerbate their fear of potentially serious criminal and civil penalties which will outweigh the intrinsic value they are likely to attach to the speech in the first place.  Thus, without a procedural safe guard against censorship by proxy the defenses are only available to a very narrow field of potential defendants and the protection they promise is gutted for all others.

What do Sarah Palin, Monty Python, and the DMCA have in common? The Masked Analyst!

This video is a must see for all students of the First Amendment!  Not only does the masked analyst provide relevant information and analysis of the DMCA and Safe Harbor Take-Downs, it is also probably the only place you will see Sarah Palin and Monty Python in the same video.  Additionally it raises the question of whether or not wearing a mask realistically provides any increased expectation of anonymity.

The "No Law" Constitutional Contradiction

An absolutist interpretation of the First Amendment would reconcile speech regulation with its fundamental meaning, that “Congress shall make no law abridging freedom of speech” or of the press by conferring monopolies in expression that otherwise would belong to the universe of discourses in which all are free to share.   Of course this is a direct contradiction of the Intellectual Property clause of the Constitution but it may help inform our analysis.  The application would then necessarily begin with the rebuttable presumption that any regulation of speech is unconstitutional.   Of course, this is an inversion in thinking when compared to the DMCA safe harbor provision, because it completely shifts the presumption of illegality from the challenged speaker to the moving party. Certainly, this is not how the law, nor the courts, have viewed and interpreted speech rights to date.  However, this type of inverted presumption might benefit future decisions if considered as a framework for internet speech rather than awkwardly overlaying common law doctrines of real world origin on the rather new and ever-changing phenomenon of the internet.

Outdated Traditional Doctrine Strained On-line?

The DMCA is a classic example of traditional copyright regulation being broadly applied to the internet world.  The problem as I see it is that the traditional nature of communication, the nature of piracy, business relationships, and avenues of profit; have all changed dramatically on the internet.  Still it seems Congress, as spurred on by the lobbying industries, is attempting an awkward marriage of traditional copyright doctrine and contemporary internet communications.  In my opinion the result is a gross misevaluation of the underlying principles that informed copyright in the first place, the “advancement of useful arts and sciences.”  It seems those interests might be better served on the contemporary internet by deregulation whereas in the traditional sense they may have been better served by regulation.  I think that when viewed in terms of the contemporary internet environment and the resulting change in how communication is conducted devalues traditional copyright doctrine and aggrandizes First Amendment doctrine because the nature of internet communication would be better served by deregulation than by an awkward statutory overlay of antiquated copyright doctrine.

First Amendment Scrutiny in the DMCA's Future?

Although traditional First Amendment protections do not apply in the private context, thus according copyrights a historic exemption from the First Amendment.  However, in Eldred v. Ashcroft,  the Supreme Court “majority conceded that lower courts have spoken too broadly when declaring copyrights categorically immune from First Amendment challenges.”   The petitioners “maintained that copywrite law is a content-neutral speech regulation and … should, therefore, be subject to intermediate scrutiny.”   Although the challenge in Eldred was rejected, the Supreme Court narrowed copyright’s sweeping immunity from First Amendment scrutiny.  In this way, Eldred may have opened the door for future First Amendment scrutiny of copyright based statutes.   Perhaps since Congress has taken an affirmative step to enter the otherwise private arena in advancing both civil and criminal sanctions under the DMCA the Court should apply the First Amendment prophylactically to the statute, or even apply intermediate scrutiny.   

Did the Internet Shatter Our Notions of Traditional Dyadic Communication?

The traditional First Amendment battlefield is framed in terms of dyadic communication, a speaker conveys a message to a listener, the press transmits a message to a listener, and a publisher distributes a message to a reader.    In the vast majority of situation any government action will be focused on the originator of the message.   At times focusing civil or criminal penalties on the speaker based on the content or content neutral regulation, sometimes based on the location,  sometimes it is even based on conduct which may be construed as speech .  In rare cases the government will focus its regulatory attention on the receiver by punishing possession or receipt of communicative materials deemed to be illegal.   Traditional copyright regulation is also framed in terms of dyadic communication, and until recently the two distinct legal theories seemed to coexist without much friction, until the internet introduced a new multilayered, multimedia form of communication.  By its very nature the internet has changed the traditional dynamic of dyadic communication by embedding several layers of private actors between the speaker and the receiver.   It will be one of this century’s great governmental challenges to regulate speech in the absence of dyadic simplicity.  One of the government’s early attempts at both regulating speech in the absence of traditional dyadic communication and addressing the free-speech/copyright paradox is the Digital Millennium Copyright Act of 1998 (DMCA).   Within the DMCA is a safe harbor provision designed to protect Internet Service Providers (ISP) from secondary liability if they comply with the statute

The Adventures of Johnny Northside

John Hoff, a former UND Law student is being tried for defamation in Federal court in Minneapolis.  The charge is apparently the result of postings he placed on his personal blog which cast a disparaging light on Jerry Moore, a former member of the University of Minnesota’s Urban Research and Outreach/Engagement Center.  Moore was allegedly fired from his position at the University because of the postings on Hoff’s blog, The Adventures of Johnny North side (interesting reading).   The Grand Forks Herald article can be found here. 

DMCA Safe Harbor Analysis

In order to provide context for future posts this is an analysis of the statutory language of the Internet Service Provider’s (ISP) safe harbor provision of the Digital Millennium Copywrite Act  (DMCA) as codified in 17 U.S.C.A. § 512. 

Applicability:

For the purposes of the relevant statute ‘‘Service provider'' means an entity offering the transmission, routing, or providing of connections for digital online communications, between or among points specified by a user, of material of the user's choosing, without modification to the content of the material as sent or received. [17 U.S.C.A §512(k)]  This definition covers a broad spectrum of service providers ranging from companies providing free internet services such as www.blogspot.com and www.youtube.com, to internet carriers providing connectivity services. 

Safe Harbor:

The safe harbor provision shields ISPs from monetary and injunctive relief in claims arising out of copywrite law if the ISP: (1) does not have actual knowledge that the material on their system is infringing on copywrite, (2) is unaware of information that would create a belief that infringing activity is apparent, (3) once such knowledge is present the ISP “acts expeditiously to remove, or disable access to, the material”, (4) the ISP does not receive benefit directly from the infringing activity, and, (5) once the ISP has received notice that some material is alleged to be infringing on copywrite the ISP “acts expeditiously to remove, or disable access to, the material.”  Essentially, the moving party will send a notification to the ISP claiming that certain material is wrongfully posted on their website and infringes on a copywrite which the moving party claims to possess.  The ISP then will remove or block the material “expeditiously” in order to avoid secondary liability.  The material is removed without any form of adjudication.  At this point constitutional Due Process protections of the fifth and fourteenth amendments are clearly implicated and by extension the removal of speech related material without Due Process protection has a chilling effect on First Amendment Protections. 

Notice:

The notice must meet a few requirements under the statute to be valid for presentation to the ISP, these include: (1)must be a written communication including, (2) the signature of the of the copywrite owner or the  owner’s agent, (3) a list of the works claimed to be under copywrite, (4) information reasonably sufficient to permit the ISP to locate the material for removal, (5) the contact information of the party claiming infringement, (6) statement of “good faith belief” that the material is under copywrite, (7) statement that the information is accurate, and if filed by an agent a statement demonstrating authority to act.  Additionally, if any of these terse requirements are not substantially met the burden shifts to the ISP to contact the claiming party to resolve any confusion.   Once notice is made the immediate fate of the material is in the hands of the ISP, which is faced with the decision to either protect the speaker and risk potentially costly liability if the claim is adjudicated in favor the claimant, or to simply remove the material and qualify for safe harbor.  Which course of action is a profit motivated company most likely pursue?

Subpoena Power:

                Perhaps the most frightening element of the statute is that it provides the claiming party with subpoena authority which can be exercised to uncover the name and user information of the alleged infringer (speaker).  The request is made to the clerk of the District Court to subpoena the ISP for identification of the alleged infringer.  The request requires basically the same information as the original notification, as well as a proposed subpoena and a sworn declaration that the information will be used for the protection of copywrite.  The subpoena order would require the ISP to expeditiously disclose sufficient information to identify the alleged infringer.  If the request is made in “proper form” the clerk of court will issue the subpoena to the ISP. 

Speaker Protections:

17 U.S.C.A § 512(f) offers some very minimal protection against S.L.A.P.P. type misrepresentations made under the notice provision.  An adjudication must occur to defend against a baseless claim, if the defendant is able to prove the defense of misrepresentation the misrepresenting party will be liable for costs which resulted from wrongful removal and attorney’s fees.  On its face the defense seems adequate however; it still requires that the defendant actually appear in court, thus exposing themselves to the possibility of copywrite liability which would potentially be much greater than the value of the speech they are defending.  Generally, the ISP is provided protection for liability arising from wrongful removal of material after receiving notice even if the defense of misrepresentation is proven.

The defendant is provided with the ability to deliver a counter notification contesting the validity of the original take-down notice.  The defendant must provide a written communication to the ISP or the ISP’s authorized agent which: 1) includes a signature, 2) identifies the material which was removed, 3) provides a sworn statement of good faith belief that the material was removed as result of mistake or misidentification, 4) the defendant’s name, address, and telephone number, and 5) a statement of consent to the jurisdiction of the Federal District Court for the district in which they reside.  Again the potential defendant is required to subject themselves to a great deal of potential liability in order to protect the speech material from removal.

Chilling Effect:

The concern is that by providing safe harbor to ISPs for removing speech material from the internet without adjudication or even a determination on the sufficiency of the claim may be insufficient for the purposes of constitutional Due Process.  Without the safe guards of Due Process there exists great potential for abuse.  ISPs are in business for profit, protecting the speech of their users at their own peril is probably not their paramount concern.  As a result the ISP is likely to simply remove the contested content in an effort to insulate itself from potential secondary copywrite liability and the speaker, who is probably the most under resourced of the involved parties, is left with the Hobson’s choice of either accepting the removal of the material or fighting the expensive uphill battle for vindication in the Federal Courts.  The end result is a chilling effect on free speech.

DMCA creating internet vigilantes?

I cannot attest to the validity of this video but it raises some interesting first amendment issues which may flow from the DMCA.

The chilling effects of a DMCA S.L.A.P.P.

According to a recent article in the Harvard Journal of Law and Technology (24 HVJLT 171) the Digital Millennium Copywrite Act (DMCA) poses serious first amendment concerns.  Under a notice and take-down provision, service providers such as www.youtube.com can qualify for safe harbor from secondary copywrite liability under the DMCA if they remove material which is asserted to be under copywrite by the claimant.  One powerful recent example of this originated in the weeks prior to the Presidential election of 2008.  Both the McCain and Obama campaigns uploaded video campaign material to www.youtube.com, and both had material removed from the website under the DMCA.  The claimants, in this case CBS News, Fox News, the Christian Broadcasting Network, and NBC News et al. would provide notice to the service provider claiming that the material in question was under copywrite.  The provider would then remove the material without any factual investigation, in order to comply with the notice and take-down provision on the DMCA thus exculpating itself from liability.  For the price of a finely worded letter the claimant succeeds in having the content removed and need not continue into costly litigation because their goal has been achieved.  The burden then shifts to the uploading party to either accept the removal, or petition the court for a determination that the material was not under copyright or qualified under the fair use exception, at the tremendous expense of both time and money and at the risk of exposing themselves to the possibility of copywrite liability.  By censoring speech without adjudication, the DMCA acts as a prior restraint against free speech, which in the words of Walter Sobchak, “the Supreme Court has roundly rejected.”

In this way the DMCA provides a ready-made S.L.A.P.P. for groups determined to censor disagreeable speech.  In our illustrative example from the 2008 campaign, after realizing material had been removed from www.youtube.com the McCain campaign wrote a letter to the website in short, warning them of the strong first amendment presumptions in favor of political speech.  In reply the website basically told them that the provider is not entitled nor expected to adjudicate these disputes, they removed the material in accordance with the DMCA and suggested that perhaps the congressman should work to change the law if this result seems unconstitutional.  Assume for a moment that the uploading party was not a multi-million dollar presidential campaign headed by a long time congressman but rather a small group or single individual uploading political speech on the internet.  Without a legal aid staff they would be unlikely to even send the letter, even though this clearly had no effect, much less take the matter to court in order to seek a favorable judgment on first amendment grounds.  Under the DMCA the well-resourced corporate party can choose to have speech and speech related content information removed from public view at little expense, while the speaker if left the tough row-to-hoe in the courtroom.

"Kill Switch" Legislation.

Given the recent interruption in internet service in Egypt, and our recent discussion on the dread “Kill Switch”, the following may be on interest to you.  This is the nuts and bolts, as I understand them, of the most recent U.S. government attempt at “National Cyber-Security.” 

On December 15, 2010 Senator Joe Lieberman sponsored S. 3480 entitled, “Protecting Cyberspace as a National Asset of 2010.”  This suggested amendment to the Homeland Security Act of 2002 would create an Office of Cyberspace Policy under the Executive Office and within the Department of Homeland Security (DHS).  This office would be charged with developing policy and strategies to increase the security of the internet, oversee and coordinate among the many federal agencies in the security of the internet, ensure compliance, and enforce policy.   Additionally, the act would create the National Center for Cyber-security and Communications (NCCC).  The NCCC would operate under the DHS to coordinate private sector and government internet security plans and protect the national internet infrastructure.  It would also transfer the Office of Emergency Communications and the National Communications System from the Office of infrastructure Protection to the NCCC.  The NCCC director is also supposed to develop guidelines to protect the privacy and civil liberties of U.S. persons and intelligence sources and methods.

Far more startling than the proposed shuffling of acronyms ad nauseum, is the creation of the internet “Kill Switch”.  Essentially, the President when advised by the directors of the NCCC and the DHS, could declare a “national cyber emergency.”  The President is then required to notify the owners and operators of internet infrastructure (private ISPs) of the nature of the emergency, after the notification the NCCC director would begin immediately directing the owners and operators of private ISPs to implement planed protective measures (shut downs).  The shutdowns could in theory be limited in scope to contain or prevent a local or regional “emergency”.  The sunset on the “emergency order” issued by the President would be 30 days, with 30 day extensions of the order authorized to the director of the NCCC. 

Federal Legislation for internet "Kill Switch", in the wake of Egyptian Riots

Check out this article "Kill Switch"!  It raises a number of interesting constitutional issues.

The North Dakota legislature is attempting to regulate cyber-bullying this session.

Several examples of school students being punished for conduct carried out over the internet have hit the news in recent months.  Normally this conduct comes in the form of written harassment of other students or teachers.  Currently North Dakota’s 62^nd legislative assembly is attempting to determine the best way of regulating cyber-bullying.  The following is a brief description of the four pieces of pending “cyber-bullying” legislation currently being considered by the legislature:

House Bill 1147 – (http://www.legis.nd.gov/assembly/62-2011/documents/11-0412-01000.pdf) was introduced by Grand Forks representatives to regulate cyber bullying within the North Dakota school system.  For the purposes of this section "bullying" would be redefined to mean any physical act, verbal utterance, or written or electronic communication that is directed toward a student and which: a) causes the student to fear harm to the student's person or property; b) has a detrimental effect on the student's physical or mental health; c) interferes substantially with the student's academic performance; or d) interferes substantially with the student's ability to participate in or benefit from services, activities, or privileges provided by a school district. 

House Bill 1250 (http://www.legis.nd.gov/assembly/62-2011/documents/11-0494-01000.pdf) would require each school district to enact a policy to prohibit bullying by any student … While using any electronic or technological device provided or supported in whole or in part by the school district … and the conditions under which the school district must notify law enforcement.  This is the only of the bills which contemplates the location from which the internet is accessed; this may be an important consideration because the state’s interest in preventing harassment on school computers is higher than its interest in regulating the conduct of students in their own homes.  On the other hand it is pointless to regulate cyber-bulling based solely on the physical location from which the bullying is conducted because the vast majority of the conduct which the state is here attempting to prevent occurs in the relative privacy of their own homes, or even over cellular telephones; both presumptively outside of the reach of this bill.

House Bill 1465 (http://www.legis.nd.gov/assembly/62-2011/documents/11-8212-01000.pdf) would require that not later than June 30, 2012, each school district shall adopt a policy prohibiting bullying at school and including bullying over the internet. This is the only one of the three House Bills here mentioned that specifically limits its proposed regulation to K-12 public schools, in contrast the above mentioned bills might be applied to state higher education institutions because they do not specifically limit themselves to K-12 schools. 

Senate Bill 2167 (http://www.legis.nd.gov/assembly/62-2011/documents/11-0210-01000.pdf) would amend a number of North Dakota criminal statutes to include acts conducted over the internet.  This includes an amendment to the meaning of written communication within the Criminal Defamation statute to include “a writing that is communicated electronically by or through the use of the internet, electronic mail, electronic messaging, or other similar means.”  Harassment, Stalking, and Disorderly conduct would be similarly amended to include electronic communication over the internet.  All of these would include written statements, photos, audio, video, and data files communicated over the internet through email, blogging, websites, and social networking sites.  Additionally, a new statutory section would require the state superintendent of public instruction to research and create a model anti-bullying plan which would then be made available to school districts within the state and all state non-public schools.  The proposed statute explicitly includes “cyber-bullying and on-line safety” and would create a North Dakota Commission on bullying to investigate cyber-bullying and determine if the laws of the state are adequate for the prevention of cyber-bullying and the punishment of perpetrators. 

S.L.A.P.P.s: Harassment suits as a bar to free speech on the internet.

Strategic lawsuits against public participation or S.L.A.P.P.s; are generally civil actions filed with the intention to intimidate, harass, and silence the defendant.  Often but not always, S.L.A.P.P.s will take the form of a slander or libel lawsuit, asserting that the defendant said or wrote something about the plaintiff that has had some damaging effect.  The plaintiff has no intention of winning a S.L.A.P.P., the goal is to burden the defendant with the stresses and costs of a legal battle until their will is overborne and they discontinue speaking out against the plaintiff.  New York Supreme Court Justice J. Nicholas Colabella has been quoted as saying, "Short of a gun to the head, a greater threat to First Amendment expression can scarcely be imagined."

One almost necessary component of these harassment suits is the power differential between the plaintiff and the defendant.  Generally, the plaintiffs have the financial and legal assets of corporations, major media outlets, or government agencies on their side.  It is favorable to the plaintiffs if the defendant is of limited means, certainly filing a harassment suit against a person or entity of equal or greater means will greatly diminish the effect of a S.L.A.P.P.  Not a recent development, the first S.L.A.P.P. was probably filed the day after the first court opened its doors, so why should we be concerned now?  There are two notable differences affecting the S.L.A.P.P.s of today which could potentially have a profound effect on first amendment rights.  First, the right to free speech can now be exercised on a global scale at no cost and with very little hassle over the internet; as a result the pool of potential S.L.A.P.P. defendants is ever expanding.  Secondly, courts and legislatures have taken notice of S.L.A.P.P.s but have had great difficultly preventing them.  According to Wikipedia, 26 states have provided some legislation protecting against S.L.A.P.P.s however there is no specific federal regulation against them.  The difficulty in rule making is obvious, we want to protect speech so S.L.A.P.P.s should be prevented or categorically dismissed by law but any regulation preventing them also runs the risk of dismissing just lawsuits.  Not surprisingly the rules vary wildly across jurisdictions.  Two possible first amendment theories that could be wielded against S.L.A.P.P.s include the right of free speech and the right of petition, but without a rule preventing S.L.A.P.P.s the potential defendant is forced to go to court and defend on an individual basis and thus the harassing effect is accomplished by the plaintiff win or lose.  Difficult to identify and even harder to prevent S.L.A.P.P.s have the potential to act as a mechanism of censorship protecting the government and the privileged from the voices of average citizens.

The First Amendment in the Digital Age

This blog will focus on the emerging legal issues surrounding First Amendment free speech on the internet.