Category Archives: Law: Free Speech

Freedom in Action

Two reminders of what freedom in action looks like:

Posted in Civil Liberties, Law: Free Speech | Leave a comment

Interviewed by Slate

I’m quoted a bit in Slate’s Florida almost certainly did not accidentally outlaw computers, which is the contrarian reaction to a bunch of stories yesterday. Katy Waldman sets the scene like this,

Back the truck up, compadres. Florida did not just inadvertently outlaw the 21st century. The Internet lit up Wednesday with reports of a new lawsuit claiming that, in its efforts to crack down on illegal gambling, the state had banned all computers, smartphones, or other devices capable of connecting to the Web. What happened: In April, Gov. Rick Scott signed a bill making illegal slot machines, which the bill defined (in admittedly billowy terms) as “any machine or device or system or network of devices” that requires “an account number, code, or other object or information” to play “games of chance or skill.”

I’m quoted accurately, and I stand by what I said about why two different canons of construction suggest the courts would read the statute narrowly… but Ms. Waldman did leave out the bit where I also said that “the statute is in fact drafted broadly and sloppily, so the suit is not frivolous.”

Update: a fuller version of what I said is at Suit: Internet cafe law also bans computers in the Tampa Bay Tribune.

Posted in Florida, Law: Free Speech, The Media | Leave a comment

Happy Flag Day

Harold Wasserman has a nice Flag Day post, celebrating the 70th anniversary of West Virginia State Bd. of Educ. v. Barnette. He calls it “a high point in U.S. Supreme Court history.”

Posted in Law: Free Speech, Law: The Supremes | Leave a comment

EFF Wins Round 1 of a Big One

National Security Letters Are Unconstitutional, Federal Judge Rules:

A federal district court judge in San Francisco has ruled that National Security Letter (NSL) provisions in federal law violate the Constitution. The decision came in a lawsuit challenging a NSL on behalf of an unnamed telecommunications company represented by the Electronic Frontier Foundation (EFF).

In the ruling publicly released today, Judge Susan Illston ordered that the Federal Bureau of Investigation (FBI) stop issuing NSLs and cease enforcing the gag provision in this or any other case. The landmark ruling is stayed for 90 days to allow the government to appeal.

The controversial NSL provisions EFF challenged on behalf of the unnamed client allow the FBI to issue administrative letters — on its own authority and without court approval — to telecommunications companies demanding information about their customers. The controversial provisions also permit the FBI to permanently gag service providers from revealing anything about the NSLs, including the fact that a demand was made, which prevents providers from notifying either their customers or the public. The limited judicial review provisions essentially write the courts out of the process.

In today’s ruling, the court held that the gag order provisions of the statute violate the First Amendment and that the review procedures violate separation of powers. Because those provisions were not separable from the rest of the statute, the court declared the entire statute unconstitutional.

Full text of the decision in In Re National Security Letter. If this is upheld by the 9th Circuit, I would imagine it would be headed straight for the Supreme Court.

OBDisclosure: I am proud to be a member of EFF’s Advisory Board.

Posted in Law: Constitutional Law, Law: Free Speech, National Security | 1 Comment

SOPA, PIPA, and Internet Blackout Day

I have somewhat mixed feelings about Internet Blackout Day. Much as I sympathize with the motives, I have never much liked campaigns that try to take the oppressor’s symbols (pink triangles, yellow stars, what have you) and turn them around into pride symbols. The origins stick.

Similarly, I get the idea of fighting censorship with quiet. See what censorship will get you? But I still don’t like it. So I’ve run a compromise, with an overlay on this site that you can click through.

The cause is serious. Congress is contemplating two very dangerous Internet blacklist bills: SOPA (in the House) and PIPA (in the Senate). SOPA has been shelved, perhaps only temporarily, but PIPA is still alive and kicking.

EFF’s summary of the issues is right on target:

The “Stop Online Piracy Act”/”E-PARASITE Act” (SOPA) and “The PROTECT IP Act” (PIPA) are the latest in a series of bills which would create a procedure for creating (and censoring) a blacklist of websites. These bills are updated versions of the “Combating Online Infringements and Counterfeits Act” (COICA), which was previously blocked in the Senate. Although the bills are ostensibly aimed at reaching foreign websites dedicated to providing illegal content, their provisions would allow for removal of enormous amounts of non-infringing content including political and other speech from the Web.

The various bills define different techniques for blocking “blacklisted” sites. Each would interfere with the Internet’s domain name system (DNS), which translates names like “www.eff.org” or “www.nytimes.com” into the IP addresses that computers use to communicate. SOPA would also allow rightsholders to force payment processors to cut off payments and advertising networks to cut ties with a site simply by sending a notice.

These bills are targeted at “rogue” websites that allow indiscriminate piracy, but use vague definitions that could include hosting websites such as Dropbox, MediaFire, and Rapidshare; sites that discuss piracy such as pirate-party.us, p2pnet, Torrent Freak, torproject.org, and ZeroPaid; as well as a broad range of sites for user-generated content, such as SoundCloud, Etsy, and Deviant Art. Had these bills been passed five or ten years ago, even YouTube might not exist today — in other words, the collateral damage from this legislation would be enormous.

There are already laws and procedures in place for taking down sites that violate the law. These acts would allow the Attorney General, and even individuals, to create a blacklist to censor sites when no court has found that they have infringed copyright or any other law.

See also EFF’s blacklist site. PIPA is scheduled for a vote in the Senate next Tuesday, so if you are a US citizen this is a good time to call your Senators and tell them to oppose the bills.

Posted in Civil Liberties, Communications, Law: Free Speech, Law: Internet Law | 2 Comments

Telex, Coming to a Planet Near You

James Grimmelmann’s neat description of the Telex project and its implications is the most interesting thing I’ve read today this week this fortnight in some time.

Must reading for anyone interested in crypto policy, free speech, or internet freedom generally.

Posted in Cryptography, Internet, Law: Free Speech | Leave a comment

Cooley Law School Sues Lawyers and Internet Posters

The WSJ reports that Thomas M. Cooley Law School is suing a law firm, and also suing four pseudonymous Internet posters some or all of whom might be former students. This is the first such case I’ve ever heard of.

Cooley has issued a statement, and links to (1) the complaint against the law firm of Kurzon Strauss LLP and two lawyers in that firm, and also (2) the complaint against four John Doe Internet writers styling themselves “Rockstar05,” “Informant,” “Anonymous,” and “Ch Bruns.”.

Cooley claims in its statement that the law firm defamed it “by falsely claiming on Internet websites, social media, and email that Cooley, a nonprofit 501(c)(3) Michigan educational corporation, has defrauded students by misrepresenting its graduate employment placement rates, average starting salary figures, and student loan default rates.” These statements were, Cooley says, part of an attempt to recruit members of a planned class-action lawsuit against it. (There is already a pending class-action claim of this type against Thomas Jefferson Law School.)

The complaints against the four Internet posters aim at the author of the blog at http://thomas-cooley-law-school-scam.weebly.com/, two commentators on that blog, and one commentator on a post at the Huffington Post.

The first issue, however, will be whether Cooley can get subpoenas and expose the identities of the posters. The leading case on this subject is Dendrite Int’l, Inc. v John Doe, No. 3, et al., 342 N.J. Super. 134, 141–42 (App. Div. 2001):

The trial court must consider and decide those applications by striking a balance between the well-established First Amendment right to speak anonymously, and 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.

. . . 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 . . .

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 . . .

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.

It may be, however, that NY uses a standard that is less protective of anonymous internet speech than Dendrite.

Posted in Law School, Law: Free Speech, Law: Internet Law | Leave a comment