May 22, 2009
Does International Law Apply in Cyberspace?
On April 27, 2007, Estonia suffered a crippling cyber attack launched from outside its borders.. It is still unclear what legal rights a state has as a victim of a cyber attack. For example, even if Estonia could conclusively prove that Russia was behind the March 2007 attack there is no clear consensus on how Estonia could legally respond, whether with armed force, its own cyber attack, or some other measure. There scholary literature dealing with these questions, as well as the ethical, humanitarian, and human rights implications of information warfare (“IW”) on national and international security is scarce. Treatments of IW outside the orthodox international humanitarian law (“IHL”) framework are nearly non-existent. This underscores the tension between classifying cyber attacks as merely criminal, or as a matter of state survival calling for the same responses as conventional threats to national security.
International law has been slow to adapt. The facts on the ground, and the widespread, amorphous use and rapid evolution of the internet in many ways challenge state sovereignty. I will advocate that the best way to ensure a comprehensive regime for cyber attacks is through a new international accord dealing exclusively with cyber security and its status in international law. Yet, the international community lacks the political will to tackle this issue directly. Until such an accord becomes politically viable, it is critical to examine how existing treaty systems may extend to cover the novel facts presented by cybe attacks. Together, existing treaties form a dual track approach to cyber attacks – one that is available for cyber attacks that do not rise to the level of an armed attack, and another that is activated once an armed attack occurs. To that end this paper will examine the most apt analogues in international law to form an appropriate legal regime for the various types of cyber attacks – whether it is humanitarian law (laws of war), human rights law (regulation of nation states behavior), or some novel combination of these and other treaty systems. In framing this regime, it will be argued that cyber attacks represent a threat to international peace and security as daunting and horrific as nuclear war. Yet the nuclear non-proliferation model is not a useful analogy since the technology necessary to conduct IW is already widespread in the international community. Instead, other analogies will rely on communications and cyber law, space law, and the law of the sea . The main failings of existing international treaties that touch on cyber law though are that most do not carry enforcement provisions. Nor do they specify how the frameworks change or fall away entirely during an armed attack. Nevertheless, regardless of whether or not cyber attacks fall below the threshold of an armed attack these bodies of law have a role to play in forming an appropriate regime. The cyber attack on Estonia in APRIL, 2007, presents an example of the dire need for clarity in the international law of non-conventional warfare using modern technology.
The Digital Rights Management Debate
Digital rights management (DRM) refers to various technological systems by which copyright holders seek to exert control over the use and circulation of their works. This dissertation explores the policy debate over copyright law as a potential vehicle for regulating DRM technologies. It examines this debate in three separate time periods, between 1989 and 2006, as it took place in Congress, in The New York Times and Washington Post, and online. It answers the question: Which policy actors communicate most regularly in which media about DRM and copyright law, and how has this changed over time?
Methods used include quantitative content analysis of documents from all three media, qualitative historical policy analysis, and web graph analysis tools that quantify and map the hyperlinks between websites. This work builds upon and extends the methodology of using web graphs as a tool for identifying the most central actors within a topical cluster of websites.
Results illustrate the birth and growth of a fairly unified multi-sector strong fair use coalition. Voices of opposition to the regulation of DRM via copyright have moved from profound underrepresentation to approximate parity in congressional access, successfully moved press coverage in a more favorable direction, and dominated the online debate. Policy outcomes reflect this shift; while the strong copyright coalition successfully pushed through two major laws expanding copyright in the 1990’s, by the mid-2000’s, the strong fair use coalition had fought them to a draw, stopping proposed expansions of copyright and winning key congressional allies for a proposal to reduce DRM regulations.
This dissertation’s results suggest the substantial power of online issue advocacy. In particular, the web benefits policy coalitions that have a disadvantage in financial capital but a comparatively large base of support. Coalitions still need regular interpersonal communication with policymakers, but online coalition building and advocacy appear to be of substantial help, legitimizing and amplifying the message of under-resourced coalitions.
May 21, 2009
Why Protect Lies?
Why does the First Amendment accord a measure of protection to lies? Using Holocaust denial as an example of verifiably false speech, this essay poses the question of whether such speech poses a more serious danger than First Amendment jurisprudence typically has acknowledged.
Download the article from SSRN here.
A New Look at the History of the Evolution of the Right of Privacy
A short review essay of Lawrence Friedman's "Guarding Life's Dark Secrets: Legal and Social Controls over Reputation, Propriety, and Privacy" (Stanford Press 2007). The essay argues that Friedman tells a nuanced and compelling story of the rise and fall of the "Victorian Compromise," a series of interlocking legal doctrines protecting the reputations of elites around the turn of the twentieth century. "Dark Secrets" undeniably advances our understanding of both the genesis of privacy law and the relationships between law and culture in the Gilded Age. As a work of legal history, it is an instant classic - a must-read for anyone interested in privacy law. But although Dark Secrets is first-rate legal history, it is less successful in its latter chapters when Friedman shifts his focus from the past to the present. The limits of Friedman's social criticism raise important questions about the ability of history alone to provide answers to social problems in our modern, networked information society.
Download the essay from SSRN here.
The Intersection of Tort Law and Media Ethics
This paper compares and contrasts the ethical obligations of news reporters under journalism ethics codes with their reporting obligations under state defamation and privacy tort law. It addresses the infiltration of tabloid journalism into traditional media sources, including the proliferation of sensationalism, triviality and disregard for privacy, with a particular emphasis on news coverage of the sports and entertainment industries. The paper also addresses the different standards for public figures created by the media, whether such standards promote justifiable social policy objectives, and how the media’s creation of such standards impacts society’s views and treatment of public figures. A 2008 survey of journalists conducted by The Pew Research Center for the People & the Press convincingly demonstrates why the journalism marketplace in the twenty-first century encourages a tabloid news media and fails to provide the press with appropriate incentives to adhere to journalism ethics codes. This paper advocates that strict tort law standards, which shield the press and were developed over forty years ago in a remarkably different free market and technological journalism environment, need to be revisited. The paper provides suggestions for incorporating journalism ethics codes into tort law standards in a manner that would create incentives for the press to internally regulate journalism ethics and give some teeth to journalism ethics codes without compromising the First Amendment.
Download the article from SSRN here.
May 20, 2009
Evaluating the Criminalizing of Privacy Violations
The recent distribution of nude photos of a number of high profile Hong Kong celebrities has provoked intense discussion about the state of Hong Kong's obscenity and indecency laws. In this paper, I argue that Hong Kong's laws prohibiting the transfer of obscene and indecent information and images between consenting adults are both under-inclusive and over-inclusive. The Control of Obscene and Indecent Articles Ordinance is under-inclusive in that it does not adequately criminalise grave violations of privacy. It is also over-inclusive because it is a blanket prohibition against the transfer by all parties (including consenting adults) of all forms of obscene and indecent materials. The laws unnecessarily violate the free expression rights of both the producer and consenting viewer of the offensive materials. The producer/publisher of such materials does not harm his or her audience as they willingly view such materials. The justification for maintaining a blanket prohibition against all transfers of such materials is invalid and utterly and totally out of touch with modern life in Hong Kong. The proponents of such laws have used Victorian positive morality considerations to justify continued criminalisation. These laws should be abrogated and replaced with a new piece of legislation that is narrowly tailored to deal with those types of offensive displays that are wrongful in a critical rather than a mere positive morality sense. Criminalisation should be limited to those offences that target children or use children in the production process, violate the rights of non-consenting adult audiences not to receive certain intimate information in certain public contexts, and violate privacy rights by publishing a person's private and intimate information without consent. If x obtains y's profoundly private information and publishes it without y's consent, then x violates y's privacy rights in a grave way. The violation in the right circumstances will justify a criminal law response rather than a mere civil law response. Similarly, if x and y copulate on a public bus they subject the captive audience to an offensive display which violates the non-consenting audience's right not to receive certain intimate information. I argue below that these types of privacy violations give the lawmaker a legitimate justification for invoking the criminal law.
Download the article from SSRN here.
Danish Reporter Runs Afoul Of Animal Abuse Laws
According to NPR, a Danish reporter fell afoul of the law when she tried to prove a point about toxic products by putting shampoo in water populated by guppies. She was convicted of animal cruelty. But a judge let her off the hook since it took four and a half years to get the case to trial. Her attorney pointed out that chefs boil lobsters alive and nobody tries them for animal cruelty. Read more here.
Press Complaints Commission Rules Magazine In Breach For Checkbook Journalism
The Press Complaints Commission has told Take a Break magazine that its payment to the daughter of a woman convicted of arson was in violation of the Press Code. Take a Break paid the daughter of Christine Chivers, convicted of setting fire to the home of Christine Wishart, for the story of the arson. Ms. Wishart complained to the PCC. The PCC upheld the complaint.
Ms Christine Wishart complained to the Press Complaints Commission that Take a Break magazine had paid a relative of a criminal in breach of Clause 16 (Payment to criminals) of the editors’ Code of Practice.
The complaint was upheld.
The complainant was the victim of an arson attack on her home for which Christine Chivers – whose story was published in the magazine on 28th August 2008 – pleaded guilty. The article included Ms Chivers’ claim that despite this plea she was actually innocent of the crime. The complainant said that there was overwhelming evidence of Ms Chivers’ guilt, and the magazine should not have allowed her to proclaim her innocence in return for money.
The magazine confirmed that it had paid £1,000 to Ms Chivers’ daughter – who was responsible for raising her brother and sister in difficult circumstances – for the article. Ms Chivers herself had not therefore benefited. The article was in any case in the public interest, as it highlighted an alleged miscarriage of justice. Additionally, the article had not sought to exploit a particular crime, nor had it glorified or glamorised crime in general.
Criminals and their associates should not generally profit from their crimes, so the Code forbids payments for stories which seek to exploit a particular crime unless there is a clear public interest.
In this case, the Commission considered that the article did not contain anything of sufficient public interest to justify the payment. The piece amounted to an explanation about why Ms Chivers had pleaded guilty to the crime, and seemed to try to justify the crime (whoever was responsible) by criticising the behaviour of the complainant....It said that Ms Chivers had pleaded guilty in order to reduce her sentence, as she had been told that there was a considerable body of evidence against her.
It was clear that the crime had been exploited for payment in breach of the Code, and there was no public interest to justify it. That was not to say that the magazine was prohibited from publishing Ms Chivers’ story. But the decision to offer payment was misguided and the editor should have recognised that immediately. The complaint under Clause 16 was upheld.
The complainant also said that the article contained inaccuracies in breach of Clause 1 (Accuracy) of the Code. Not only was the central thrust of the article – that Ms Chivers was innocent, and ignorant, of the crime – untrue, but the story contained a number of other incorrect statements.
The magazine pointed out that it had included a statement at the end of the article making clear that the story constituted Ms Chivers’ own version of events. It also offered to publish a further article detailing the complainant’s story.
Regarding the complainant’s main objection that the piece inaccurately suggested that Ms Chivers was innocent, the Commission considered that it was clear from the way it was presented that the piece was Ms Chivers’ own view about what had happened, rather than any claim by the magazine about her involvement in the crime. It would have been apparent from this that the other parties to the incident may have had another view about what happened. In these circumstances, the Commission was satisfied that the magazine had properly distinguished between comment, conjecture and fact in accordance with the Code. Additionally, the piece made clear that she had been convicted of the crime having decided to plead guilty.
In terms of the other complaints of inaccuracy, the Commission noted that such pieces will often contain an individual’s recollection of an event that may be disputed by someone else – but this will not normally breach the Code when the claims are properly set in context and the details are incidental.
Justice Secretary Jack Straw says the result of conditional fee arrangements, in which the plaintiffs' attorneys can charge if they win, but nothing if they lose, is causing a "chilling effect" in British media law. For well financed media, such as newspapers in big cities this may not be as much of a problem, because they might be able to afford to see a high profile case to its conclusion, but for less affluent media in smaller cities, the threat of lawsuits could well cause a potential defendant to back down. Mr. Straw made his remarks to Parliament in testimony Tuesday.
"So Easy, Even A Man Can Do It"
The Advertising Standards Authority has determined that an oven cleaner ad that uses the line "So easy, even a man can do it," is not sexist and demeaning to men. The ASA concluded that viewers would see the ad as amusing. Some viewers complained that the ad was demeaning to women, since it implied that women usually clean ovens.
In its adjudication, the ASA found that
[T]he scenario of a man who did not enjoy cleaning the oven being "forced" to do so by his disapproving wife was portrayed in a manner that was likely to be seen by the majority of viewers as light hearted and comical. The mans behaviour in particular and the "disclaimer" at the end of the ad were clearly intended to be over the top and humorous and both characters childlike behaviour appeared incredulous.
We noted that the ad used mild humour to refer to traditional gender stereotypes but considered that the overall impression was such that it did not portray either gender in a way that stigmatised, humiliated or undermined them by using harmful stereotypes. We noted some might consider the humour in the ad in poor taste but concluded that it was unlikely to cause serious or widespread offence.
We investigated the ad under CAP (Broadcast) TV Advertising Standards Code rules 6.1 (Offence) and 6.6 (Harmful or negative stereotypes) but did not find it in breach.
That TV License Fee
The British tv license fee, which funds the BBC, has been under scrutiny for some time. Right now the House of Commons is debating whether to hold the line for a year, instead of allowing the fee to increase as allowed under the terms of a six-year agreement that takes the inflation rate into account. BBC supporters think an increase is needed to allow the network its independence.
Supreme Court Grants Cert In Conrad Black Case
Conrad Black, the former head of Hollinger International, who was convicted of mail fraud, will get his day at the Supreme Court. The Court granted cert in his case. See the 7th circuit denial of his appeal here.
May 19, 2009
Rapper Dies of Gunshot Wounds at L.A. Hospital
Rapper Dolla (Roderick Anthony Burton II) has died of gunshot wounds at Cedars Sinai Medical Center. He was 21. Mr. Burton, who was reportedly with rapper DJ Shabbazz, were outside a local mall when he was shot. Police are investigating. The L. A. Times has more.
Mr. Burton's first album was to be released this summer.
Music Groups Sue Programmer For Infringement
Several music industry groups, including Sony, are suing Pablo Soto for unfair competition over P2P file-sharing programs that allow free downloads. Mr. Soto claims that his programs allow use consistent with Spanish law. Read more here.
No Inquiry Into Leak Over MP Expenses
Whoever leaked information about the expenses of Members of Parliament to the media--a very hot issue--is apparently safe from police investigation after the London police decided not to pursue an inquiry. Law enforcement, along with the Crown Prosecution Service, have announced they will let things lie. Read more here. The issue of MP expenses has led to much debate, and at least one political casualty--Speaker Michael Martin is stepping down.
Anita Ramasastry On the Duty To Remove Online Content After Barnes v. Yahoo
Concerns Over Blasphemy Bill In Ireland
The Organisation for Security and Cooperation in Europe (OSCE) warns of the effects of introduction of a new blasphemy bill in Ireland, amending the existing Defamation Law.
A Bird In the Hand
So, granted, this post has nothing to do with media law, but I need a break from posting about lawsuits and trials and all that. This post has to do with a man, a mama duck, and her brood. Watch Joel Armstrong catch the ducklings and deliver them to Mom safely. And note: a parade was scheduled, but those waiting made way for [the] un-permitted ducklings, now at home on the river.
May 18, 2009
Woody Allen, American Apparel Settle For $5 Million
Actor/director Woody Allen and manufacturer American Apparel have apparently settled out of court over the company's use of an image of Mr. Allen from the film "Annie Hall." A trial was set to start today. Mr. Allen read a statement saying he hoped the $5 million settlement would discourage companies from "trying such a thing again." But Dov Chaney, the head of American Apparel, indicated the company's insurance company had decided to settle the case. Read more here and here.
Do We Need a Federal Law Against Cyberbullying?
Helen Popkin discusses the wisdom of laws against cyberbullying. Currently under discussion: H.R. 1966: Megan Meier Cyberbullying Prevention Act, introduced by Linda Sanchez, (CA), numerous co-sponsors.
Meanwhile, Lori Drew awaits sentencing in the MySpace case: she was convicted in November on three misdemeanor counts. Ms. Drew assisted in making up a fictional profile for a teenaged boy on MySpace; the "boy" then befriended Megan Meier, a thirteen year girl who was an acquaintance of Ms. Drew's daughter. When the "boy" broke off the friendship, Megan killed herself. State prosecutors declined to file charges against Ms. Drew, but federal prosecutors filed charges in Los Angeles where MySpace servers are located.