Category Archives: Law: Free Speech

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

How to Censor ‘A Censorship-Resistant Web’

A Censorship-Resistant Web sets out a sketch of a way to create fail-safe distributed copies of web pages (i.e. not centralized in a single point of failure like at archive.org) thought likely to suffer political risk, to authenticate them as genuinely by the original author, and to help browsers find them if the original were to vanish.

What’s nice about this system is that it gets you censorship resistance without introducing anything wildly new. There are already certificate authorities. There are already hash-to-URL servers. There are already mirrors. There’s already Tor. (There’s already tor2web.) The only really new thing specific to censorship resistance is URL-to-hash servers of the form I described, but they’re very simple and hopefully uncontroversial.

There is some work to be done stitching all of these together and improving the UI, but unlike with some other censorship-resistance systems, there’s nothing you can point to as having no good purpose except for helping bad guys. It’s all pretty basic and generally useful stuff, just put together in a new way.

(Spotted via Cory Doctorow)

I like this kind of stuff, and this seems the start of a fine effort. But it made me think, and I’m afraid that I had an evil idea.  The same techniques that allow users to navigate to the backup pages(s) also will allow the party that took down the page in the first place to find the duplicate(s), and it will rarely be hard to trace these to their respective owners.  So if this form of future-proofing becomes frequent for politically sensitive materials, I expect the cross-border aspect of the denial-to-denial-of-service-attack to be overcome by executive agreement or treaty.

The difficulty for the censor in the USA, however, is that pesky First Amendment.  I can see two ways that a determined government might try to get around it other than directly applying its scary and expansionist reading of the Espionage Act.  The first would be to argue the still-open issue regarding the supremacy of treaties over the Bill of Rights.  But that’s rather major, and would depend on the content of the hypothetical international agreement. It may also be unnecessary.

A sneakier work-around the First Amendment might go as follows:

  1. Seize the copyright of the online version.  This might be done on a claim that the text is contraband or was acquired with contraband.  Alternately, the seizure might be effected under the standard condemnation power, in which case just compensation would be due to the original owner in order to comply with the Fifth Amendment.
  2. Once the government has the copyright it then applies the DMCA to all the (domestic) copies and has them taken down.  It applies to foreign countries to do the same under the proliferating DMCA clones around the world.

There are a couple of complexities that need explanation.

First, the US government doesn’t usually claim copyright in the work product of its employees, which would make the claim that there is a copyright to seize difficult if the government was the original author of the leaked work (the WikiLeaks situation). That’s from 17 USC § 105,

Copyright protection under this title is not available for any work of the United States Government, but the United States government is not precluded from receiving and holding copyrights transferred to it by assignment, bequest, or otherwise.

But imagine that § 105 was amended, and the government did start to claim copyright in its employees’ works, or maybe just in all classified works produced by the government or its contractors and agents.  On the one hand, this would seem to avoid the need to seize the copyright, since the government would already have it and could instead go straight to the DMCA. 

On the other hand, however, the government would face a difficulty in that in order to claim copyright over the posted work, the government would have to admit that the work was authentic, something the US government has studiously avoided doing (officially) in the WikiLeaks case.

Perhaps, however, the government could invent some new procedure in which it went to District Court and proceeded in the alternative, saying it was either seizing the copyright, or not (leaving the question of just compensation for any subsequent proceeding in which someone claiming to have the copyright could come forward in the Court of Claims), but in either case now claimed entitlement to a declaration that it had the authority to apply the takedown clauses of the DMCA?

Anyway, all this is too horrible.  I hope a real copyright lawyer can come along and explain why it is nonsense. And by posting it on the day of the year when no one reads this blog, I hope I’ve both established priority in the unlikely event this both isn’t nonsense and is original, and also limited the chance of the idea taking off.

Posted in Cryptography, Law: Copyright and DMCA, Law: Free Speech, National Security | Leave a comment

WikiLeaks

John S. Quarterman has some thoughts on Our Friend Unfairly Maligned in London’s Court at Perilocity.

I haven’t written about any of this myself because my thoughts seem pedestrian to me: I think there’s a huge difference between a leaker and a recipient of classified information. The leaker commits an act of civil disobedience, and takes the risk of severe consequences, although one hopes bounded by due process and humanity. The constraints on the recipient are — and/or should be — strictly moral ones, not legal ones, or journalism as we know it is over. Legally, WikiLeaks is like the New York Times, or rather, as regards US law, the UK’s Guardian. This ought to be too simple to even need repetition, although sadly that repetition seems necessary.

The moral questions can be much more complicated, especially if an unredacted leaked document puts lives at risk. In the most recent document dump, however, WikiLeaks defused most of the moral issues as regards itself by using expert intermediaries: as I understand it, it gave the documents to various quite well respected newspapers, and let them decide what to print, what to withhold, what to redact. So the choices were outsourced to experts, and thus so too a good share of the moral responsibility.

As regards the legal cases now underway in London and Sweden, I feel too ignorant to say much, except that the whole thing looks odd to me, starting with the local Swedish prosecutor’s decision not to bring charges being supplanted by a different prosecutor in the capitol, and going forward via odd steps (Interpol? Most wanted?) to the present day proceedings in London (no bail?). But without knowing far more about the relevant local law, I don’t feel justified in doing more than asking questions.

The sight of US legislators and other fomentors baying for Assanage’s head is ugly as sin — in fact, in some cases it is sin — but it’s also now par for the ugly course on which my fellow voters have set the ship of state.

Posted in Law: Free Speech | 2 Comments