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Tuesday, September 16, 2014

"An International Legal Framework for Surveillance"

The title of this post comes from this recent paper by Professor Ashley Deeks, the abstract of which states:

Edward Snowden’s leaks laid bare the scope and breadth of the electronic surveillance that the U.S. National Security Agency and its foreign counterparts conduct. Suddenly, foreign surveillance is understood as personal and pervasive, capturing the communications not only of foreign leaders but also of private citizens. Yet to the chagrin of many state leaders, academics, and foreign citizens, international law has had little to say about foreign surveillance. Until recently, no court, treaty body, or government had suggested that international law, including basic privacy protections in human rights treaties, applied to purely foreign intelligence collection. This is now changing: several U.N. bodies, judicial tribunals, U.S. corporations, and victims of foreign surveillance are pressuring states to bring that surveillance under tighter legal control.

This article tackles three key, interrelated puzzles associated with this sudden transformation. First, it explores why international law has had so little to say about how, when, and where governments may spy on other states’ nationals. Second, it draws on international relations theory to argue that the development of new international norms regarding surveillance is both likely and essential. Third, it identifies six process-driven norms that states can and should adopt to ensure meaningful privacy restrictions on international surveillance without unduly harming their legitimate national security interests. These norms, which include limits on the use of collected data, periodic reviews of surveillance authorizations, and active oversight by neutral bodies, will increase the transparency, accountability, and legitimacy of foreign surveillance.

This procedural approach challenges the limited emerging scholarship on surveillance, which urges states to apply existing — but vague and contested — substantive human rights norms to complicated, clandestine practices. In identifying and valuing new, objectively verifiable, neutral norms, the article offers a more viable and timely solution to the perils of foreign surveillance.

September 16, 2014 in First Amendment, Fourth Amendment, Web/Tech | Permalink | Comments (1)

Wednesday, June 18, 2014

Few protections exist for the victims of online harassment

One needs to spend little time online to experience the wrath of easily and oft-slighted morons. Say something about anything on a message board and you're bound to draw the attention of someone looking for space and a target for their frustrations. Such tirades are usually humorous in their Internet_trollsimplicity, but occasionally their authors cross the line. However, as The Atlantic's Noah Berlatsky reports, a notable study by the Center on Law and Information Policy at Fordham Law School finds that victims of online harassment find little relief from the law. Berlatsky writes:

[The study's authors] point to the case of United States v. Alkhabaz, in which the defendant described in detail on a Usenet message board violent sexual acts he imagined performing on one of his classmates. The case was eventually thrown out because the defendant did not email the story to his classmate, and did not intend her to see it. As the authors say, "Alkhabaz demonstrates that the burden to determine a 'true threat' is quite high, and presumably most hostile online speech would fail to meet the standard determined by the Sixth Circuit." In fact, [Alice] Marwick and [Ross] Miller found very few incidents in which a harasser faced criminal penalties. It hardly ever happens.

 

Despite such difficulties, it's not clear that it would be a good idea to make it easier to criminalize online speech. As the authors say, "People from all sides of the political, social, and economic spectrum use ‘internet vigilantism’ to target and shame those they disagree with, from Men’s Rights activists shaming feminist filmmakers to feminists shaming writers they believe to be sexist." There are already high-profile discussions which frame activism by women of color online as abusive. If online speech is criminalized, it seems likely that the most powerful speakers won't be targeted first.

 

So, if the police are unlikely to act, and the First Amendment makes most legal remedies impossible, what can you do? 

 

Practically, the path most victims have taken is to use the legal system not to win a judgment, but to subpoena IP records. Legal proceedings can allow victims to unmask and potentially publicize the names of their anonymous harassers. This is what Lori Stewart eventually did. After going to the police, she was able to discover the harasser's identity; Robin B. King, a 56-year-old Defense Department employee based in the Saint Louis suburbs. (In April, King pleaded guilty to a misdemeanor count of harassment through electronic communication, according to local news reports.)

 

Unfortunately, even identifying harassers doesn't necessarily stop them. As Marwick told me in an email: "Right now unmasking anonymous users is often seen as the best option by the harassed, often because it's very very difficult to pursue criminal proceedings and service providers are not legally required to remove content or reveal information about their users. However, that doesn't mean it's an effective solution. While the threat of revealing IP addresses and ‘real names’ can deter some harassers, it's certainly not true for all."

 

Marwick added that Lori Stewart's threat to reveal Robin King's identity didn't end his harassment. Stewart had to actually get a restraining order, and press charges. 

 

Ultimately, the best way to deal with harassment is probably not legal, but communal. Marwick told me that, "there are places on the internet where such harassment does not happen, whether due to the culture and norms of the site, or aggressive moderation." She pointed to Metafilter "which discusses all manner of controversial and personal issues. It costs $5 to set up an account, and postings can easily be flagged and removed." Another example (that Marwick doesn't mention) is Comic Book Resources, a comics website which revamped its message boards after one of its writers received rape and death threats.

 

Hiring moderators and policing comments can be expensive, and the logistics become very difficult when you're dealing with something as large as Twitter or Facebook. Still, Marwick and Miller suggest that getting Twitter and Facebook to deal more proactively with harassment is likely going to be easier, and more effective, than trying to pass new laws, or increase prosecutions. And smaller venues, too, have a responsibility to prevent harassment and protect users—all the more so since the government is not likely to do it for them.

June 18, 2014 in First Amendment, Freedom of Speech, Web/Tech | Permalink | Comments (0)

Thursday, June 5, 2014

INTERNET ACCESS ACHIEVED!!!

And it only took nearly 48 hours of my time on the phone with Time Warner representatives. That's progress!

June 5, 2014 in Web/Tech | Permalink | Comments (0)

Friday, February 7, 2014

Bipartisan bill would end online access to some court records

Access to Wisconsin's online court records database soon could be limited. Indeed, much to the chagrin of some open government advocates, the Wisconsin legislature is considering a bill that would prevent online access to court records in cases resulting in dropped charges or not guilty verdicts. The bill, of Imagescourse, is an attempt to shield people who have been charged but not convicted of crimes from the potential misuse of their records--certainly a legitimate concern. However, restricting online access to those records might be foolhardy. As the Milwaukee Journal Sentinel reports: 

Bill Lueders, president of the Wisconsin Freedom of Information Council, said the approach of the bill was "fundamentally wrongheaded" because the solution to some people misusing information should not be to cut off access to that information for all people.

 

Limiting access to CCAP would create an opening for private businesses to create their own, for-profit databases with all court records, Lueders said. That would mean the information would still be easily available, but people would have to pay for it.

 

If CCAP is turned into nothing more than a "compendium of guilty people," it would make it appear that every prosecutor in the state gets it right every time. That would be a "distorted view of what is actually happening in the courts," he said.

I'm inclined to align with those who think that citizens' access to information about the government should not be restricted. Such information, it seems to me, is particularly important when the government threatens the civil liberties of citizens--as it does during a criminal trial. The misuse of the information at issue here is certainly contemptible, but hiding this information places more power in the hands of the criminal justice system. This, I believe, is unacceptable.

The title of this post comes from this Journal Sentinel article, which begins:

The public would lose ready access to court records about people who were found not guilty or had charges against them dropped under a bill a bipartisan group of lawmakers wants to move through the Assembly.

 

The bill — which received a public hearing Thursday — would make sweeping changes to the state's popular online database known as Consolidated Court Automation Programs, or CCAP. The site, which receives nearly 8 million hits a day, for years has been run by the state courts with little oversight from the Legislature.

 

The site is widely used by landlords, employers, journalists and curious citizens. Some lawmakers have raised concerns that people misuse or misinterpret data on the site because it includes information about almost all court cases, including ones in which defendants have been found not guilty or prosecutors have dropped charges. The database also includes details on pending cases, in which people have been charged but courts haven't ruled on whether they are guilty.

 

Under the bill debated Thursday, cases would be removed from CCAP within 120 days after a criminal case or charge has been dropped, the defendant has been found not guilty or the case has been overturned on appeal and dismissed. Charges that were dropped but read into the record so they could be considered for charging purposes would remain on the site.

 

Assembly Speaker Robin Vos (R-Rochester) has spoken favorably of the concept, saying last fall cases involving those who have been found not guilty should not remain on the site.

 

Advocates of open government oppose the changes, arguing court officials have invested years of work in determining what information should be included on the site, including notifications that defendants are innocent until proven guilty and employers can use information on the site only in limited circumstances when deciding whether to hire someone.

 

But those who want to make changes to the system argue dismissed charges in the system can be misused and make it harder for people to get jobs or rent apartments.

CRL&P related posts:

February 7, 2014 in First Amendment, Web/Tech | Permalink | Comments (1)

Monday, January 13, 2014

Old School/New School Speech Regulation

The title of this post comes from this intriguing paper by Professor Jack M. Balkin arguing that the development of "the digital infrastructure of communication" has expanded the opportunities for private expression, and thus has required governments to create new methods of regulating speech. Here's the abstract:

In the early twenty-first century the digital infrastructure of communication has also become a central instrument for speech regulation and surveillance. The same forces that have democratized and decentralized information production have also generated new techniques for surveillance and control of expression.

Unknown-3“Old-school” speech regulation has traditionally relied on criminal penalties, civil damages, and injunctions directed at individual speakers and publishers to control and discipline speech. These methods have hardly disappeared in the twenty-first century. But now they are joined by “new-school” techniques, which aim at digital networks and auxiliary services like search engines, payment systems, and advertisers. For example, states may engage in collateral censorship by threatening Internet intermediaries with liability to induce them to block, limit, or censor speech by other private parties.

Public/private cooperation and co-optation is often crucial to new-school techniques. Because the government often does not own the infrastructure of free expression, it must rely on private owners to assist in speech regulation and surveillance. Governments may use a combination of carrots and sticks, including offers of legal immunity in exchange for cooperation. States may also employ the “soft power” of government influence. Owners of private infrastructure, hoping to reduce legal uncertainty and to ensure an uncomplicated business environment, often have incentives to be helpful even without direct government threats.

Finally, governments have also devised new forms of digital prior restraint. Many new-school techniques have effects similar to prior restraints, even though they may not involve traditional licensing schemes or judicial injunctions. Prior restraints are especially important to the expansion of government surveillance practices in the expanding National Surveillance State. Gag orders directed at owners of private infrastructure are now ubiquitous in the United States; they have become fully normalized and bureaucratized elements of digital surveillance, as routine as they are invisible, and largely isolated from traditional first amendment protections.

(h/t Balkinization)

January 13, 2014 in First Amendment, Freedom of Speech, Web/Tech | Permalink | Comments (0)

Thursday, December 19, 2013

CRL&P Daily Reads: Dec. 19, 2013

Five recommendations from NSA task force; The Week asks whether NSA's mass surveillance is effective; Politico looks at how task force's recommendations affect Obama's policy options; and, Dave Eggers says Dave Eggers and others should speak out against the NSA's policies.

ACLU alleges Native American and black students subject to racial and sexual harassment from students and teachers in California school district.

Bill in Ohio Senate would allow married same-sex couples to file joint tax returns.

Former officer alleges sex discrimination by police department when it terminated her because of a workplace relationship; police in New Jersey settle civil rights suit alleging harassment of a teenager; officer in Georgia faces lawsuit after putting a man in the hospital with a blow from his flashlight; and, Columbus alleged to have violated event organizer's civil rights when it shut down his festival after the shooting of an 11-year-old. 

No more donations to the Boy Scouts until gay leaders are allowed, says Lockheed Martin.

 

December 19, 2013 in Civil Rights Litigation, Excessive Force, Fourth Amendment, Same-sex marriage, Web/Tech | Permalink | Comments (0)

Wednesday, December 18, 2013

CRL&P Daily Reads: Dec. 18, 2013

Larry Klayman, Larry Klayman, Larry Klayman.

Brazil shirks Snowden.

Plain Dealer columnist argues for armed employees in schools.

Federal judge will hear challenge to Ohio's ban on recognition of same-sex marriages on death certificates.

Student's civil rights suit alleges anti-LGBT harassment by teachers and administrators; police lieutenant claims he was fired in retaliation for testimony he gave against the department in several civil rights cases; Orlando PD face allegations of excessive force by a group of officers; and, civil rights suit over alleged unjustifiable death of Lansing teenager re-emerges.

 

December 18, 2013 in Civil Rights Litigation, Excessive Force, Fourth Amendment, Gun Policy, Same-sex marriage, Schools, Web/Tech | Permalink | Comments (0)

Tuesday, December 17, 2013

CRL&P Daily Reads: Dec. 17, 2013

Federal judge says NSA's surveillance program violates the Fourth Amendment, but that will not be the end of it; several Senators feeling vindicated after the ruling; Politico explains the political impact of the NSA ruling on the White House's surveillance program review plans; NYTimes profiles the plaintiff; Obama will discuss NSA surveillance with Tech giants at today's meeting; and, Snowden tests the waters on 'permanent political asylum' in Brazil (full letter here).

Civil rights activists accuse Texas of neglecting election laws aimed at boosting voter turnout.

State's lawyers in challenge to Pennsylvania's same-sex marriage ban allegedly stalling and making intrusive requests of plaintiffs; and, same-sex couples in Illinois can get married before law's enactment with a doctor's certification that a life-threatening illness would makes doubtful their ability to wait.

Seattle PD facing civil rights suit after officer allegedly throws a bystander of protest to the ground.

 

December 17, 2013 in Civil Rights Litigation, Election Law, Excessive Force, Fourth Amendment, Same-sex marriage, Web/Tech | Permalink | Comments (1)

Sunday, December 15, 2013

CRL&P Daily Reads: Dec. 15, 2013

Thursday, December 12, 2013

CRL&P Daily Reads: Dec. 12, 2013

How gun control is losing, badly; gun control groups focus on states; report says reducing gun violence requires early intervention for troubled youth; Ana Marie Cox claims Congress is scared of the gun lobby; but, gun control activists are staying positive.

Operator of revenge porn site says it's 'ruining my life', and his court date is scheduled.

Former contractor files a civil rights suit alleging the federal goverment harassed him because of an auto-complete error in Google search; and, Miami Gardens police chief resigns following allegations of racial profiling.

North Dakota Supreme Court weighs arguments in abortion case challenging ban on drugs to terminate pregnancies; and, legislators share personal stories about abortion.

No agreement on court date for North Carolina's voter ID case.

NSA chairman says mass surveillance is the best way to protect U.S.; Judge Napolitano warns about NSA mass surveillance; and, 'The Raven' Revisited.

 

December 12, 2013 in Abortion, Civil Rights Litigation, Election Law, Fourth Amendment, Gun Policy, Revenge Porn, Right to Vote, Voter ID, Web/Tech | Permalink | Comments (0)

Wednesday, December 11, 2013

CRL&P Daily Reads: Dec. 11, 2013

NSA takes advantage of 'cookies' used for advertising to track surveillance targets.

Federal judge rejects California AG's request for dismissal in case challenging law requiring 10-day waiting period for gun owners.

Cruel and unusual punishment suit after prisoner placed in solitary confinement for one month could cost taxpayers.

American man claims discrimination after the California Department of Corrections denied him a job because he had previously used a false SSN, while in Illinois this guy still has a job.

Amendment aimed at protecting sexual assault victims scrapped as Congress passes the National Defense Authorization Act.

Bill introduced in the Senate to eliminate state laws regulating the sexual activity of people with HIV.

Chinese Law Prof is expelled for criticizing China's one-party government.

Man convicted of a hate crime after attacking a Sikh cab driver to serve more than three years in prison. 

And, a six-year old is suspended after kissing a classmate on the cheek. I wonder if he would have received similar punishment if had hit her.

 

December 11, 2013 in Civil Rights Litigation, Fourth Amendment, Freedom of Speech, Gun Policy, Prisons and Prisoners, Theories of Punishment, Web/Tech | Permalink | Comments (0)

Tuesday, December 10, 2013

The New Software Jurisprudence and the Faltering First Amendment

In his upcoming article, Professor Liam O'Melinn explores the First Amendment's applicability to computer code and finds that "the new software jurisprudence" is seriously jaundiced because of misunderstandings about the free software movement. The title of this post comes from his article, of which the abstract states:

Courts have recently begun to respond to the call to provide First Amendment protection for software, with ominous results. A debate has raged over the past several years over whether or not computer code should be considered “speech” and therefore be entitled to the full protection of the First Amendment. An examination of important decisions in recent cases attempting to settle this debate requires a revision of the basic assumption that the First Amendment will offer effective protection to programs, their authors, and their users. While there have been judicial decisions which lend credence to the view that the Constitution can be invoked to protect software, subsequent developments in this area, which I term “the new software jurisprudence,” cast severe doubt on the ability of the First Amendment to shield software effectively. These developments include the faults of previous strains of First Amendment analysis and then add more,with the ironic result that the First Amendment may now be used to justify the suppression of expression rather than to prohibit such suppression. 

 

This line of jurisprudence for software threatens a legal revolution premised on the belief that the specter of copyright infringement represents a perpetual emergency. At the same time, it is evident that this legal revolution will have to contend with a counter-revolution brought about by the free software movement. DeCSS represents only the tip of an iceberg which has thus far escaped real notice by the law, but the movement is becoming so important that it will force itself to be recognized. Indeed, it has already mounted a vigorous and to this point successful assault on the trade secret status of the technology which the movie industry has chosen to protect its content. A full investigation of the importance of this phenomenon lies well beyond the scope of this article; for the moment it must suffice to note that the character of open source software and the people who produce it will challenge the legal and economic assumptions at the heart of the law of intellectual property. Free software is not the product of pirates who steal from others and vend their wares in dark corners. Nor is it brought about by the incentives which, according to conventional thinking, are necessary conditions to creativity. The creation of free software, moreover, is an expressive activity which will leave its impress on the law. 

 

As time goes on, the free software programmers will require a revision of the now familiar role of equity in copyright law. The high quality of the software they create, coupled with its truly democratic rights of access, will provide the most telling challenge to the notion that only monopolistic economic incentives can lead to creative excellence. Finally, as their favorite mode of expression works a revolution not only in the way we communicate but in our very conception of property, they will effect fundamental changes in the way in which the law links expression and function . Unfortunately, it is not clear that the First Amendment will help them in their work. The courts have promised to develop legal and constitutional standards appropriate to the character of software, but in this effort they have largely failed. When they begin to focus less on the specter of piracy and more closely on the nature of software and the democratic access to information which it promotes, they will come closer to developing a novel and vital jurisprudence and to fulfilling their promise.

December 10, 2013 in First Amendment, Freedom of Speech, Web/Tech | Permalink | Comments (0)

CRL&P Daily Reads: Dec. 10, 2013

Allegedly illegal strip searches in Milwaukee jail could cost the city millions; man acquitted of drug charges files a civil rights suit against FBI alleging malicious prosecution; police face civil rights suit after officer pleads guilty to child porn; jail staff knew diabetic woman in their care needed insulin perhaps days before she died; Miami Gardens police allegedly used excessive force and denied medical treatment to arrestee; and, man was killed by a police officer who had accidently been tased by another officer.

Atlantic says Obama misled MSNBC's Chris Matthews on NSA surveillance; Guardian reflects on how the debate over surveillance has changed since Snowden's leaks; Nobel-winning writers say NSA surveillance is compromising freedom; Bill Clinton worries about the NSA's collection of economic data; and, NSA makes tech companies worry about profits.

Federal judge holds journalists have no constitutional right to be embedded with military; and, ACLU says prison officials violated the First Amendment by denying reporters access to prisoners after a riot.

Gun manufacturers doing better than before Newtown.

Same-sex couples race to challenge Texas's same-sex marriage ban; and, this graph shows geographical online efforts to promote gay-rights.

 

December 10, 2013 in Civil Rights Litigation, Excessive Force, First Amendment, Fourth Amendment, Freedom of Press, Freedom of Speech, Gun Policy, Prisons and Prisoners, Same-sex marriage, Strip Searches, Web/Tech | Permalink | Comments (0)

Monday, December 9, 2013

CRL&P Daily Reads: Dec. 9, 2013

Senate likely to extend ban on plastic guns, but nexus of gun-control debate has shifted to the states; and, four of five members of the city council in rural Rhode Island town face recalls after recommending changes to process for issuing concealed weapons permits.

Obama about ready to announce changes to NSA surveillance program; major tech companies submit open letter to Obama and Congress demanding new limits on NSA's freedom-harming surveillance; Snowden might testify before the EU Parliament's committee on civil liberties; local law enforcement is using software in NSA-style monitoring of cellphone data, and here's how it does it; and, Sen. Paul calls for a renewed commitment to the Fourth Amendment.

Rutger's basketball player alleges civil rights violations against former coach for allegedly repeated verbal and physical abuse; and, New Orleans settles civil rights lawsuit alleging man was falsely arrested and held for five months.

Editorial lambasts New Mexico prison for placing 71-year-old in solitary confinement for one month on suspicion of bringing meth into the facility.

Internet companies speak out against former Cincinatti Bengals cheerleader's defamation suit after federal judge allows it to proceed.

Lexington facing protests after booking for its New Years Eve party a DJ who previously ran a revenge porn site.

 

December 9, 2013 in Civil Rights Litigation, First Amendment, Fourth Amendment, Freedom of Speech, Gun Policy, Prisons and Prisoners, Revenge Porn, Universities and Colleges, Web/Tech | Permalink | Comments (0)

Thursday, December 5, 2013

CRL&P Daily Reads: Dec. 5, 2013

Massachussetts legislative committee on election laws considers voter ID bill; Mississippi's Secretary of State claims that 90 percent of the state's citizens already have ID required by new voting law; and, voting rights group to advocate for laws that expand voting and access to the polls in all 50 states.

Civil rights lawsuit filed against a police officer who allegedly broke an elderly man's arm in a roadside incident while off-duty; taxpayers in a Rhode Island town will cover $7 million settlement agreed to after a confrontation in which the police shot a teen 9 times leaving him paralyzed; and, wrongful death claim against California police for the shooting of a suicidal man is allowed to proceed.

Support for stricter-gun laws is dropping.

Federal judge hears oral arguments on Utah's same-sex marriage ban.

Tennessee asks state Supreme Court to provide dates of execution for 10 inmates.

NSA tracks cell locations worldwide.

 

December 5, 2013 in Civil Rights Litigation, Election Law, Excessive Force, Fourth Amendment, Gun Policy, Right to Vote, Same-sex marriage, Theories of Punishment, Voter ID, Web/Tech | Permalink | Comments (0)

Wednesday, December 4, 2013

CRL&P Daily Reads: Dec. 4, 2013

Monday, December 2, 2013

CRL&P Daily Reads: Dec. 2, 2013

Sunday, December 1, 2013

CRL&P Daily Reads: Dec. 1. 2013

Friday, November 29, 2013

CRL&P Daily Reads: Nov. 29, 2013

Wednesday, November 27, 2013

The Third Amendment, Privacy and Mass Surveillance

The title of this post comes from this article arguing that the Third Amendment could serve to protect individual privacy interests against instrusion by 'cybersoldiers' serving the country's national security interests. Here's the abstract:

We live in an era of mass surveillance. Advertisers, corporations and the government engage in widespread data collection and analysis, using such avenues as cell phone location information, the Internet, camera observations, and drones. As technology and analytics advance, mass surveillance opportunities continue to grow. 

The growing surveillance society is not necessarily harmful or unconstitutional. The United States must track people and gather data to defend against enemies and malevolent actors. Defenses range from stopping attempts to breach government computers and software programs, to identifying and thwarting potential terroristic conduct and threats at an embryonic stage. 

Yet, without lines drawn to limit mass data gathering, especially in secret, unchecked government snooping likely will continue to expand. A sitting Secretary of State even recently acknowledged that the government has “sometimes reached too far” with its surveillance. The stakes for drawing lines demarcating privacy rights and the government’s security efforts have never been higher or more uncertain. 

This paper argues that the forgotten Third Amendment, long in desuetude, should be considered to harmonize and intersect with the Fourth Amendment to potentially limit at least some mass government surveillance. While the Fourth Amendment has been the sole source of search and seizure limitations, the Third Amendment should be added to the privacy calculus because it provides a clear allocation of power between military and civil authorities and creates a realm of privacy governed by civil law. 

Consequently, in today’s digital world it would be improper to read the words of the Third Amendment literally, merely as surplusage. Instead, the Amendment’s check on government tyranny should be viewed as restricting cybersoldiers from focusing surveillance instrumentalities on and around private residences or businesses in an intrusive way – or using proxies to do so -- that would serve as the functional equivalent of military quartering in the civil community.

 

November 27, 2013 in Fourth Amendment, Web/Tech | Permalink | Comments (0)

Monday, November 25, 2013

The New Speech

The title of this post comes from this fascinating article inquiring into the potential for First Amendment challenges as technological developments produce new speech platforms. Here's the abstract:

Could the government prevent Facebook from deleting an individual’s Facebook account without first following government-prescribed procedures? Intervene to require Google to conduct its search engine rankings in a certain manner, or subject Google to legal liability for wrongful termination or exclusion? Require social networks and search engines to prominently reveal the criteria by which their algorithms sort, order, rank, and delete content? Demand that some user information or data be deleted, withheld, made inalienable, non-transferable, ungatherable or uncollectable? Engage in detailed regulation of the intellectual property and privacy relationships that inhere between individual users and the platforms they engage?


6373_K0wXihVG_o-600x424Each of these questions implicates the First Amendment, and as each question reveals, the same stresses that strained the institution of property when Charles Reich wrote The New Property in 1964 confront digital speech in 2014. The most important “speech” of the next century will be generated, intermediated, transformed, and translated by massive computers controlled by powerful institutions: petitions in front of the shopping mall replaced with “Likes” on Facebook and “Votes” on Reddit; sports leagues replaced by leagues of Counter-Strike and Call of Duty; broadcast and cable news replaced by interactive, algorithmically-generated, computer-curated granularly distributed news memes spread via blogs and aggregators.

As more of the activities that were once exclusively the province of the physical world become the province of the digital, more of the issues that once confronted the distribution and allocation of rights in property will confront the distribution and allocation of rights in speech. While the great speech debates of the twentieth century were about the content of speech — that is, what one could say — the great speech debate of the twenty-first century will be about what counts as speech and whose speech counts. Will it be that of institutions and algorithms, or individuals and organic communities?

These are questions courts are already confronting and they are getting the answers wrong. In contrast to scholars who by turns either deemphasize the transformative nature of the New Speech or argue that courts will have little impact on its growth, this Article argues that potentially critical judicial missteps are already occurring. Just as the needs of modern industrial society were delayed and often stymied by the judiciary of the early twentieth century, if we fail to consider the implications of the speech decisions courts make now, the needs of the modern information society may be delayed and stymied by the judiciary of the early twenty-first.

This Article is an effort to explore the ways in which speech platforms represent a new challenge to the First Amendment, one that will require it to bend if we are to prevent the Lochnerization of the Freedom of Speech. It ties together various threads — the power of automation, the centrality and power of Internet media platforms, the doctrines developing in the courts, the actual acts of censorship in which these platforms regularly engage, and the core purposes the First Amendment was designed to serve — to make a sustained argument that we must think seriously about restructuring and dejudicializing the First Amendment if we are to avoid seeing the First Amendment transformed into a powerful shield for the very sorts of censorship it was written to prevent.

 

November 25, 2013 in First Amendment, Freedom of Speech, Web/Tech | Permalink | Comments (0)

Friday, October 25, 2013

CRL&P Morning Reads: Oct. 25, 2013

Wisconsin woman held in drug treatment center under fetal protection law challenges the law's constitutionality.

NRO's Reihan Salam says political reformers should focus on increasing party power.

Time raises questions about online reporting of sexual abuse.

Ohio Secretary of State says there's a need to cut down early voting hours.

Ohioans could be turning to Michigan abortion clinics as local ones close.

Columnist rejects argument for arming teachers and says its time to start holding partents of schoolhouse killers responsible as well.

And, a North Carolina Republican official resigns following racially-charged comments on Wednesday's The Daily Show.

 

October 25, 2013 in 14th Amendment, Abortion, Election Law, Equal Protection Clause, Fourth Amendment, Gun Policy, Reasonableness, Schools, Web/Tech | Permalink | Comments (0)