Speech #1
Enrique Armijo / Kill Switches, Forum Doctrine, and theFirst Amendment’s Digital Future
What’s different about digital speech? Political scientistLarry Diamond: information and communication technology is liberationtechnology allowing citizens self-determination—samizdat/small self-publishingfor change. Flip side: Sergey Brin,Google, more realistic: it turns out that you can put the genie back in thebottle—because speech is intermediated. In physical space, the First Amendment relies on the presumption thatspeakers and listeners share the same physical space; speech is limited byspace and temporality, as in the public forum doctrine. The law looks at thespace the speaker and listeners share and asks whether it’s public, who ownsit, what its traditional uses are, whether it’s traditionally a public forum—ifnot the government can generally shut it down. Public forum as easement: public earns a right by speaking.
Citizen-to-citizen communication through tech—listeners don’thave to be in the same space or time as the speaker or as other listeners. Also illustrates intermediation: every pointin the act of communication is facilitated by a third party. It can be a network, software provider, etc.We’ve overcome temporal and spatial limitations, only with intermediaries, andintermediaries have increased capacity for interference. Moreover, we losepublic forums and any public easements in them.
We’ve already had ex post punishments, but tech expands theways in which a government or private actor can interfere ex ante and made expost more effective. Ex ante: kill switches, blocking individualsites/Twitter/etc.; website licensing requirements; restraings on privatechoices; state-built internet alternatives. Ex post: surveillance that detersspeech; criminal punishment; countermeasures. Not a one way-ratchet towardsfreedom. Accounts not available incertain countries, e.g., Innocence ofMuslims blocked in some countries, and Twitter accounts blocked in Germany.Google doesn’t owe you anything, including freedom: Siva Vaidhyanathan.
Collusion between private and government entities; shutdownof internet to Egypt and Libya.
In the US: BART cellphone service shutdown in order toprevent a public protest. This isn’t an equivalency argument, but it is anarchitecture argument: controlling the network is controlling speech. BARTargued that it wasn’t a public forum—shutting off its repeaters didn’timplicate speech regardless of content, because a train platform isn’t atraditional public forum. But BART wasn’t just providing a physical space, itwas providing a network. Even if the speaker is on the platform, the listenersmay be elsewhere—their rights to receive information are compromised; theirright to association too. Interferencewith speech affects both parties’ speech interests, but the public forumdoctrine doesn’t recognize that.
Other doctrine is also unsupportive: US v.American Library Association: providing internet access doesn’t create alimited public forum, since it’s just for patrons’ research and thereforewebsites have no speech interests. Intent only goes one way. USPSv. Greenburgh, the mail: placing unmailable matter can be banned too.
What happens when these cases reach muni wi-fi? Public-private partnerships?
Think less like First Amendment scholars and more likeengineers to protect speech. Common carriage principles: should serve allcustomers, carry all traffic, and discriminate against neither, regardless ofidentity of the customer or the content of the traffic. BART argued that itshould be able to shut off the network if it knew that there was acell-detonated bomb; but his rule would subject that decision to strictscrutiny. However, Congress has declinedto create common carrier obligations.
Ai Weiwei said: “if the internet is uncontrollable, freedomwill win.” But what happens if theinternet is controllable?
Mark Blitz: there is a kind of intermediated speech thatdoesn’t fit the standard model—good old fashioned writing. Less intermediatedthan it used to be—didn’t need public forum doctrine to protect it. (Did need protection from antilitteringordinances etc.)
Larger question: who would have common carriage requirements? Does the Constitution command an answer? Most straightforward application is to ISPsstepping into role of phone company, but what about Twitter and FB, etc.? Theyhave a stronger claim to be publishers as well as traffic carriers. How do you figure out who’s subject to therequirement?
A: could have content discrimination on the ends with anopen channel, and he may be prepared to accept that.
Q: public forum doctrine is dead; may bolster argument withdistributional argument—for people who can’t afford private access, gov’tprovided access may be their only hope, so they’re disproportionatelyaffected. Consider also Marsh v.Alabama, the company town case. Alsoconsider the basis of the claim by the internet users against the state—listener-centricstrands of First Amendment doctrine are poorly spelled out but might help. Also what happens when gov’t passes ofenforcement to private parties, as with six strikes in copyright.
A: Agreed with the “dead” status, but listeners matter.
Q: in the 19th century, regulators had a lot oftrouble figuring out what “discrimination” means for common carriers. What would it mean today?
Felix Wu: how would this apply to a shutdown of muniinternet services? Could becharacterized as nondiscriminatory regardless of the reason—or are theyrequired to give a reason?
A: mine has two components, carry all messages and carry allmessengers. If you shut down access fora content-based reason, that would be a problem.
Wu: but is that true for common carriage doctrine? If youdisallow all packets, then what?
A: ties into a postal service case: the gov’t is free tohave a service or not have it, but once it has a service it has to deliver anymail. (But it probably can’t shut themail off during a political campaign and then turn the service back on.)
Q: but there wasn’t universal service until the late 19thc., just big city deliveries and then private contractors who’d deliver it toindividuals or you’d go to the federal depot. Rural delivery was a lot longer.
Blitz: could borrow useful pieces from public forum doctrine—neutraltime place and manner regulations ok, but non-neutral/selective enforcementwould violate the Constitution. Can gobeyond a very simple version of common carriage requirements.
Ira Steven Nathenson / Super-Intermediaries, Code, HumanRights
Spurred in part by Innocenceof Muslims: with great power comes great responsibility; Google sometimescasts itself as the hero, but is also often cast as the villain. Recognize the importance of social media in spreadinginfo through the Arab world—Twitter used by 1.3 million Arabs and FB by 43million.
Super-intermediaries: a term used in banking law; his claimshere are both descriptive and normative. Certain intermediaries have great power and thus specialresponsibilities to the public—does int’l human rights law help guide us onwhat those would be? Then tries to provide a taxonomic framework for whichintermediaries count. Avoid express normative claims about what speech ought orought not to be protected or how to balance claims under int’l human rightslaw. Does make claims about the process super-intermediaries should use and thetransparency they should maintain about takedowns.
If we want to look at powerful intermediaries, look atsocial impact. User relationship (how interactive is it; how individualized isit; networkability)—treat Google search separately from YouTube; legalscrutiny; reputation (may have political power, even celebrity status, andhero/villain ambiguity).
Legal scrutiny: intermediaries that face a lot of privatelegal scrutiny, lawsuits from individuals, include Google, Amazon, FB—not somuch for Craigslist or Wikipedia. Suits for antitrust, patent, copyright, TM,and defamation—all claims (except patent) likely to be asserted against anintermediary because of its intermediary status—the list is pretty much thesame. Private extralegal scrutiny—hundredsof thousands of takedown notices also sent to really powerful intermediaries.His own ranking: FB, Twitter, YouTube, Google (search engine), then eBay,Amazon, Wikipedia, Craigslist, ISPs; Tumblr may be up and coming but isn’tthere yet.
Superheroes: tropes of superheroes are superpowers,vulnerability, archenemies, even secret headquarters. Can find guidance there.
Innocence of Muslims. Cindy Lou Garcia’s acting was overdubbed witha question asking whether Mohammed was a child molester; many protestsresulted. Obama administration asked forthe video to be taken down, and Google refused in the US but blocked it in anumber of countries. When searching YT Egypt site, he could easily search forit. What Google seems to be doing isgeolocation, even though it’s using a country-specific TLD.
Universal Declaration of Human Rights etc. protect freedomof speech/expression, but there are significant tension: ICCPR says speech canbe restricted to protect the rights or reputations of others, public health, publicmorals, etc. ICCPR 20(2), which the USdidn’t join, says any advocacy of national, racial or religious hatred that constitutesincitement to discrimination, hostility or violence shall be prohibited by law.
Various ways that superintermediaries regulate—processes,algorithms, domain name system, geolocation. Ways of dealing with these situations: one way is the status quo. Tim Wu on community-based system a laWikipedia, though that has significant downsides. The Innocence of Muslims page on Wikipedia in English is very differentin French; this is not one global community but embodies different values,cultures, and speech choices. Pseudonymity is also allowed—risking trolling and shilling; whereas areal name requirement puts people living in repressive regimes at risk. Tribunals like a human rightscommission? Code? Geolocation is difficult to opt out of. Content ID has a res, for IP, but can’t really do that to identify speech.
His own proposal: process principles. Transparency/public participation in creationof processes that can lead to removal of content. Transparency about the source of requests toremove expression. Transparency/public participation in decision-making forhigh-profile cases. Transparency for the outcome of requests to removeexpression, as Google does. Processes for users in blocked regions to opt out?
Mark Lemley: There are efforts to voluntarily do a bunch ofthese things, like contributing to Chilling Effects. Google and now Twitterhave started disclosure. Is this a set of best practices or a set of legalprinciples? If built into law, whose law?
A: might be product-specific—Picasa might not need these.For opt out, that’s a hard question. Geolocation lets Google decide to complywith local laws—should Google enable people to flout the laws of theircountries? Difficult Q because he ispunting on the speech issues. Maybe it’sjust too big an issue.
Lemley: imagine me, secure in the US, saying “I want myvideo to show up in Egypt” v. an Egyptian saying “I want my video out thereeven though I know it’s banned here.”
A: his thought is that people should have a mechanism to getpolitical/religious speech, whether it’s affirmative provision or not blockingattempts to get around geolocation.
RT: as a comic book fan, I want to make a suggestion aboutthe paper’s discussion of secret identities: a better analogy would be the useof tax havens. Look at accusations aboutGoogle avoiding European taxes by reporting revenue almost entirely in Ireland;Amazon using nonpresence to avoid collecting sales tax as a way of making itsproducts cheaper. Super-intermediariesas non-state but super-state actors.
A: Google’s don’t be evil mantra is itself a sin—it’s pridein assuming you’re not vulnerable to human failings.
Fred von Lohmann: Paper makes a lot of factual assertions;be careful as you flesh out. Strugglingwith why super-intermediary is an important taxonomy. Can think of 100companies that satisfy at least many of these criteria; if the issue is speech,then why is this taxonomy special? Broadcasters share many of these; why notask them to disclose what programs they chose not to run? What stories theychose not to cover? Who influences their decisions? Purpose-built to ID big,consumer-facing internet companies. But why them?
A: relying on his own work right now, but does want furtheranswers.
Jonathon Penney / Internet Censorship, Information Conflict,and the Cycle of Global Telecommunications Technologies
Related to Tim Wu’s cycle of cooptation and innovation, butglobal communication tech tends to go through a period of novelty and consensus(consensus on promoting the tech and getting it recognized in law &policy); then a period of info conflict and control, when states realize itsinvasive potential and try to rein it in; then innovation/intervention with anew technology. All of this has happenedbefore and all of this will happen again: undersea cables. The people who read messages sent throughundersea cables and decided whether to let them through were called censors.Undersea cables could also be severed with the right equipment.
What was the int’l community’s response to networkvulnerabilities? Consensus that it should be protected and promoted. 1875Telegraph Convention finalized in St. Petersburg: idealistic—a universal rightto communicate by telegraph. Notice mechanism to protect messages propogatedthrough network. If a country wanted to suppress at a way station, you had toprovide notice to the sending country; no exception to notice requirement fornational security or cultural reasons. Expressly allowed for/encouragedencryption for states and private entities. 1884 Cables Convention prohibitedsevering and provided remedies for parties harmed by severing. No provisionsfor war.
Highly effective at peacetime; fails when war breaks out.Britain controls the network and realizes that it can use that to its nationalsecurity and commercial advantage. In 1908, a small war amendment—no noticerequired if “dangerous” to national security. NSA and GCHQ were built as cable surveillance agencies.
Consensus broke down; paralysis on an international level;mostly unsuccessful litigation on cable cutting, though some success shamign statesto pay. Fourth Hague Convention: 1908: cable communications between neutralsare “inviolable.”
Other case studies have a similar pattern.
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