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.