October 30, 2003
A Visual Joke And Also A Decent Exam Question
Here’s a fun visual joke from David Weinberg that he calls Trademark Registered Copyright (and which he has placed in the public domain, thereby preventing the hypo from becoming a realo). I suspect that with only a little effort, it could be turned into a nice exam question in Trademark law. Which I’m not teaching this semseter.
What I need is exam questions for Administrative Law and especially International Law, which I’m teaching for the first time.
Does Hackerdom Need an Emblem?
If there were to be a hacker emblem, Eric Raymond, author of How To Become A Hacker, The Cathedral and the Bazaar, and the original Jargon File, is surely as good a choice as anyone to pick it.
And if someone were going to pick an emblem, what better than a symbol from the Game of Life. Some might vote for the blinker, the most-seen object in Life, others for the glider gun, block, the beehive, or the integral sign, but the glider is fine.
But really, even keeping in mind the more comlex and nuanced way that Eric Raymond uses “hacker,” as opposed to the USA Today cartoon version— are hackers the sort of group that need a logo? (See the Slashdot thread. I particularly liked the suggestion that hackers are defined by the color of their hat.)
Actually, yes. Hackers require a small but constant supply of new T-shirts. For some it is because the old ones wear out from being worn and laundered day after day. For others it is because the old shirts get too tight round the waist. Still others find that their old T-shirts get up and walk off after months of not being washed.
And this will look nice on a T-shirt.
US Export Control Rules Applied to Prevent Editing of Scholarly Articles
The US Government’s Office of Foreign Assets Control has told the IEEE, publishers of engineering journals that it cannot edit contributions from persons in Cuba, Iran, Libya, or Sudan. This is very hard to understand as anything but a First Amendment violation. Unfortunately, I can’t find the primary sources online, and the secondary sources are not as clear as I’d like.
On 30 September, the U.S. Treasury Department (Washington, D.C.) informed the Institute of Electrical and Electronics Engineers (IEEE) that it must continue to limit members’ rights in four countries embargoed by the United States: Cuba, Iran, Libya, and Sudan. The ruling means, among other things, that the IEEE, the world’s largest engineering association (and the publisher of this magazine), cannot edit articles submitted by authors in those countries, making it effectively impossible for most such work to appear in IEEE publications.If IEEE wishes to edit and publish the work, the Treasury Department informed IEEE, it will need to apply for a special license. That ruling could in turn have far-reaching consequences for hundreds of other U.S.-based scholarly publishers and professional organizations.
In the meantime, however, IEEE members in the four affected countries are prohibited from being elevated to a higher-grade membership; using IEEE e-mail alias and Web accounts; accessing online job listings; and conducting conferences under the IEEE name [see “Services in Dispute,” p. 15]. They still receive printed journals and other publications. In January 2002, when the IEEE first imposed its restrictions, it had over 1700 members in the embargoed countries, nearly all of them in Iran; only about 200 are still members. IEEE has about 380 000 members worldwide.
…
We’ve been working with OFAC to better understand what services we can still provide,” Adler says. “But [OFAC] drew the line very explicitly on editing.” In his letter to IEEE, OFAC director R. Richard Newcomb stated that “U.S. persons may not provide the Iranian author substantive or artistic alterations or enhancement of the manuscript, and IEEE may not facilitate the provision of such alterations or enhancements.” Such enhancements include “reordering of paragraphs or sentences, correction of syntax or grammar, and replacement of inappropriate words.”
Foreign asset controls are designed in part to stop money and services from going to ‘bad’ regimes. The statutes and regulations I am familar with all contain exemptions for “publications”. From what I can see, the government argues that editing is some sort of prohibited service (or technology export? If so that would open a nice can of worms — a perfect topic for a student’s law review note…). Whatever they may call it, I have a lot of trouble imagining a regime that requires journals to get a license to allow them to edit foreigners’ submissions as anything other than a classic prior restraint on speech.
Unfortunately, as far as I can tell, neither the IEEE’s first note, nor its latest, have the full text of what they received from the Office of Foreign Assets Control (OFAC).
All I could find was the following Q&A on the IEEE web site. It describes what sounds to me like a prior restraint on speech (requiring a license), premised on the theory that editing of scholarly papers is a “service” covered by our export control laws:
Q: What is the purpose of the OFAC license?
A: To understand the license being sought by IEEE, it is first necessary to understand that IEEE has just persuaded the Office of Foreign Assets Control (OFAC) that most of IEEE’s editorial process for submission and processing of manuscripts is actually “exempt” from any regulation by OFAC under its embargo rules and thus does not require any license whatsoever. In its September 30 letter to IEEE, OFAC confirmed that all of the following activities are entirely “exempt” from the Iranian embargo rules, exactly as IEEE has argued for several months:
- authors residing in Iran are free to submit their manuscripts to the IEEE;
- IEEE is free to send Iranian-origin manuscripts to our member volunteers for peer review and comments or questions;
- our IEEE member volunteers, as peer reviewers, are free to communicate their comments or questions on those manuscripts directly to authors residing in Iran;
- IEEE is free to facilitate this dialog between peer reviewers and authors residing in Iran, as long as these communications are not of the type prohibited by OFAC; and
- IEEE is free to publish such Iranian-origin papers (including any author-incorporated comments from the peer reviewers), as long as IEEE does not itself edit or revise the manuscripts for the authors residing in Iran or direct their editing or revision.
- In light of these OFAC rulings, IEEE is applying for a license solely to deal with the editing and revision of submitted manuscripts from authors who reside in Iran (and, presumably, in other embargoed countries), which OFAC still deems a “service” to such persons. The editing and revision process is a vital step in peer reviewed journals, and IEEE wants to handle manuscripts submitted from authors residing in Iran (or any other embargoed countries) in exactly the same manner that it treats manuscripts from authors in any other jurisdictions. For that reason — that is, to ensure uniform and non-discriminatory treatment of all authors — IEEE is seeking OFAC permission to edit and revise manuscripts from such authors in exactly the same way it would treat papers received from authors in any other countries.
IEEE is seeking a kind of license that would grant a blanket permission to handle specific situations in a generic way, and, if such a license is granted to IEEE, IEEE expects there will NOT be any individual specific notice to or permission from OFAC (which is in the Treasury Department) before any particular article is to be accepted and published. As noted above in the activities that OFAC has declared “exempt,” OFAC has ruled that it has no legal power to bar the submission of manuscripts to IEEE from authors residing in Iran or to block their publication by IEEE.
I think what bothers me second-most here, after the government’s action, is that the IEEE sounds grateful for the chance to apply for a license to speak. Double-plus ungood.
A Little Bit About Libel Law (Inspired by the Atrios affair)
I’m a regular reader of Eschaton, but I had a busy day, so it was something of a shock to discover this evening that he’s gotten a cease-and-desist letter from some poor deluded soul who claims he’s being libeled both by Atrios and by commentators on the Eschaton blog, and that half the blogs in the world have weighed in on it.
Plenty has been said about the merits, and I won’t add to it. (See here for one roundup of links.)
But it might be useful to summarize some of the relevant cyber-law principles, which differ slightly from ordinary libel law. In what follows I treat the cyber-law aspects (only) of three issues: (1) Libel by a blogger; (2) libel by a commentator to a blog; (3) whether a lawsuit can force an ISP to reveal the name of an anonymous blogger.
Please note the disclaimer: I’m not your lawyer. This isn’t legal advice, it’s an academic essay regarding general principles. If you are threatened with a lawsuit, you need a lawyer who will consider the law in your jurisdiction, recent developments and, especially, specific facts pertaining to your situation — facts that might change everything.
As regards any libels he authors, a blogger is in the same position as any other author.
As regards anything said by the commentators, a blogger is in a strong legal position, although how cheaply and surely he can beat off a lawsuit may depend on where he lives. [Please note that regardless of what follows, I think that in any circuit, once a blogger has an actual libel brought to his attention, both prudence and especially good taste would counsel removing it.]
The key text is 47 U.S.C. §. 230(c ), (c ) Protection for ”Good Samaritan” blocking and screening of offensive material
(1) Treatment of publisher or speakerFurthermore, “No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.” 47 U.S.C. § 230(e)(3).No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.
An “information content provider” is defined as “any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational systems.” 47 U.S.C. § 230(f)(2).
In Batzel v. Smith, 333 F.3d 1018 (2003), the 9th Circuit held that § 230 protects the moderators of a discussion group. The moderators were thus immune from liability for defamatory messages posted to their groups by others—and the sole person liable for that defamation is the author of the message. According to the 9th circuit, this is true whether or not the moderator exercises editorial judgement as to which messages to post; under any plausible reading of § 230 if this is true for discussion group moderators then it should also be true for bloggers, especially if the blog just automatically posts reader-generated content. A similar rule applies in the Third, Fourth, Tenth, three other circuits, and is often called the Zeran rule after the Fourth Circuit case that first enunciated it. See Green v. America Online, Inc., 318 F.3d 465 (3d Cir.2003); Zeran v. America Online, Inc., 129 F.3d 327 (4th Cir.1997); Ben Ezra, Weinstein & Co. v. America Online, Inc., 206 F.3d 980 (10th Cir.2000).
It’s true that just recently a California state court of appeals adopted a narrower view of § 230, emphasizing that the statute shouldn’t be read to protect those with guilty knowledge of the libelous content. Barrett v. Rosenthal, —- Cal.Rptr.3d ——, 2003 WL 22346578 (“We agree with appellants that the statute cannot be deemed to abrogate the common law principle that one who republishes defamatory matter originated by a third person is subject to liability if he or she knows or has reason to know of its defamatory character.”). That doesn’t apply to the automatic posting of comments, so it’s probably not relevant here, although it might suggest liability for leaving something online once you have reason to know it’s defamatory.
It’s also true that Judge Easterbrook on the influential Seventh Circuit offered some contrary dicta the other day in Doe v. GTE Corp., —- F.3d ——, 2003 WL 22389811, suggesting that the Zeran case provides too much immunity to Internet service providers, and that it should not be read to apply “when some rule of state law does require ISPs to protect third parties who may be injured by material posted on their services.”
While I think the Zeran decision is right, and would likely apply to the automated posting that applies to blogs in any circuit, the amount that a blogger would have to expend to vindicate this position, and the certainty of victory, obviously depends on where he lives.
And in the case of Atrios, we don’t know where he lives, because “Atrios” is pseudonym.
Which brings me to the next issue: can a plaintiff force an ISP to reveal the identity of an anonymous blogger?
The short answer is that it depends. Here is what I wrote about this last January, and I have no reason to believe anything significant has changed since then,
The ordinary legal means for a party aggrieved by an unknown but potentially knowable party to achieve redress is to file a “John Doe” lawsuit against the unknown party. In so doing the plaintiff not only avoids any statute of limitations, but secures access to judicial process to help secure the information necessary to identify the person who should be named in the lawsuit. See generally Roger M. Rosen & Charles B. Rosenberg, Suing Anonymous Defendants for Internet Defamation, 19 No.2 Comp. & Internet L. 9 (2002). In most cases implicating anonymous internet speech, that means a subpoena directed against the ISP or bulletin board operator or a related discovery request aimed at one presumed to know the speaker’s identity. Sometimes the recipient of the subpoena notifies its customer, who then can move to quash the subpoena, or files for a protective order. The outcome of these quashing actions have varied. The earlier cases tended to uphold the subpoenas, leading to cries of outrage about the chilling effect on First Amendment activities. More recent cases have tended to be more solicitous of the speakers’ rights, See Anderson v. Hale, 2001 WL 503045 (N.D. Ill.) (holding that disclosing information about publicly known members of a white supremacist organization would not chill their First Amendment rights to freedom of association because it is not directed at the heart of the organization’s protected activities, but disclosure that aims to reveal the identity of the organization’s anonymous members directly chills associational rights.), but it remains to be seen how the higher courts will balance “the right of the plaintiff to protect its proprietary interests and reputation through the assertion of recognizable claims based on the actionable conduct of the anonymous, fictitiously-named defendants,” Dendrite International, Inc. v. John Doe, No. 3, 775 A.2d 756, 760 (N.J. Super. 2001), against the First Amendment rights of speakers.
In Dendrite International, Inc. v. John Doe, No. 3 a New Jersey state court of appeals ruled that online posters can keep their identities secret in most cases, and crafted rules to protect. Id. Dendrite, a maker of sales-force technology, sued to reveal the identities of several message-board posters, claiming they posted false statements about the company. In affirming the denial of the discovery request, the Dendrite court set guidelines for New Jersey trial courts to follow when companies sued to determine the names of anonymous posters, although it emphasized that each case should be decided individually:when such an application is made, the trial court should first require the plaintiff to undertake efforts to notify the anonymous posters that they are the subject of a subpoena or application for an order of disclosure, and withhold action to afford the fictitiously-named defendants a reasonable opportunity to file and serve opposition to the application. These notification efforts should include posting a message of notification of the identity discovery request to the anonymous user on the ISP’s pertinent message board.The court shall also require the plaintiff to identify and set forth the exact statements purportedly made by each anonymous poster that plaintiff alleges constitutes actionable speech.
The complaint and all information provided to the court should be carefully reviewed to determine whether plaintiff has set forth a prima facie cause of action against the fictitiously-named anonymous defendants. … the plaintiff must produce sufficient evidence supporting each element of its cause of action, on a prima facie basis, prior to a court ordering the disclosure of the identity of the unnamed defendant.
Finally, assuming the court concludes that the plaintiff has presented a prima facie cause of action, the court must balance the defendant’s First Amendment right of anonymous free speech against the strength of the prima facie case presented and the necessity for the disclosure of the anonymous defendant’s identity to allow the plaintiff to properly proceed. [Id. at 760-761]
The court, however, immediately demonstrated that this is far from an absolute protection for anonymous speakers. The same day that the New Jersey appellate court decided Dendrite, it also decided Immunomedics, Inc. v. Jean Doe, 775 A.2d 773 (N.J. Super. 2001). Here, applying the Dendrite test, the court determined that a biopharmaceutical corporation was entitled to disclosure from Yahoo! regarding the true identity of Jean Doe, an anonymous poster to a Yahoo! message board, because the corporation had presented sufficient evidence that the user was an employee of the corporation who had breached a confidentiality agreement by posting to the message board. Id. The court stated that the employee had “contracted away her right to free speech,” and that by “choos[ing] to … violate an agreement through speech on the Internet [she] cannot hope to shield [her] identity and avoid punishment through invocation of the First Amendment.” Id. at 775, 777-78.
Similarly, in John Doe v. 2TheMart.com Inc., 140 F.Supp.2d 1088 (W.D. Wash. 2001), 2TheMart.com sought a subpoena to force InfoSpace, and ISP, to reveal the identities of 23 posters who used pseudonyms on InfoSpace’s invesment-related message boards. 2TheMart.com was defending itself against a class-action lawsuit alleging the company engaged in securities fraud, but the anonymous posters were not parties to the case. In the course of refusing to order InfoSpace to disclose the names the court fashioned a four-pronged test that also sought to balance the interests while giving due but clearly not overwhelming weight to the writers’ interest in remaining anonymous,
Whether (1) the subpoena seeking disclosure was brought in good faith; (2) the information sought relates to a core claim or defense; (3) the identifying information is directly and materially relevant to a core claim or defense; and (4) the information sufficient to establish or disprove the claim or defense is unavailable from any other source.See id. at 1095.
Once again, the balance is considerable solicitude towards the citizen’s interest in remaining anonymous, but not to the point that it inevitably trumps competing values.