News stories are reporting that the federal judge in the Lori Drew “MySpace suicide” case has thrown out Ms. Drew’s conviction under the Computer Fraud and Abuse Act.  Although what Ms. Drew did was horrible, we have long thought that her federal indictment was a gross distortion of the law.

The judge will issue a written order soon, and then we will know exactly why the case was tossed out.  But based on comments the judge made a few weeks ago, we are hopeful that the court will broadly reject the government’s effort to criminalize violations of “terms of service.”  We will report back once the opinion comes out.

Chinese authorities today delayed implementation of the much-disparaged Green Dam-Youth Escort filtering mandate, just one day before the July 1 implementation deadline.

Since the Green Dam directive was made public, we have learned that the filtering software does not work as proposed or publicized, may create serious security vulnerabilities, may contain stolen code, and likely violates China’s WTO obligations. The filter targets far more than sexually explicit material and is capable of shutting down a variety of applications when politically sensitive keywords are triggered. Independent analysis has also revealed that security flaws in the software could make millions of PC users in China vulnerable to a variety of malicious attacks
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Yesterday the U.S. Court of Appeals for the Ninth Circuit issued an excellent decision in a focused-but-important appeal dealing with “Section 230,� which provides vital protections to service providers who facilitate online speech and users’ ability to control their Internet experiences.

The case involved a less familiar aspect of Section 230, which is commonly applied in free speech rulings that shield (for example) a social network from liability based on content posted by its users. Section 230 also protects service providers from liability from efforts to control offensive content. The Zango v. Kaspersky decision, however, dealt with a third and lesser well-known component of 230 – protection afforded to companies that make tools that users can use to control their own online experiences (such as filtering software).

The Zango case raised the question of whether an anti-spyware vendor (Kaspersky) would be shielded from liability under this third part of Section 230. Zango had argued that 230 only applied to tools that filter adult content, rather than more broadly applying to tools that allow users to control content such as spyware.
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At the urging of CDT, the 9th U.S. Circuit Court of Appeals issued an “amended” decision in the Barnes v. Yahoo! Case, correcting two serious errors that had been included in the court’s initial decision. In May, CDT and others had filed a “friend of the court” brief urging the court to delete language that limited service providers’ ability to be protected by “Section 230,” a provision which enhances free speech online by protecting service providers from liability for content posted by their users.  The court made the exact changes that both Yahoo! (as a party) and CDT, Public Citizen, and others that had signed onto the original brief had urged.

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In a win for free speech and openness online, the Minnesota Department of Public Safety has come to its senses and dropped its campaign to force ISPs in the state to block access to overseas gambling sites. The letter rescinding the earlier demand cited a lawsuit challenging the demand’s legality, filed by the Interactive Media and Gaming Association.

The lawsuit, in which CDT believes iMEGA would likely have prevailed, has been dismissed. As CDT wrote last month, officials had misinterpreted a federal statute in concluding that they had the authority to force the ISPs to filter the gambling sites from their Internet offerings, and that such demands raise serious constitutional concerns. While a spokesman insists that Minnesota has not “folded its hand,� the decision to drop the matter suggests a recognition that the effort would not have held up in court.

We at CDT applaud this reversal; it should serve as a cautionary tale for other government authorities that try to muscle up on ISPs using tenuous legal arguments. We hope the South Carolina Attorney General is paying attention to the lesson learned in Minnesota as he considers the wisdom of his crusade against Craigslist.

The Chinese government has blocked access to Twitter and a slew of other online platforms for expression in China on Tuesday. Users report that Twitter, Flickr, Bing.com, Hotmail, Windows Live, Blogger.com, and other services are unavailable. YouTube has also been largely blocked since March.

The Chinese government often restricts access to online services during politically sensitive periods. As this week marks the twentieth anniversary of the deadly crackdown on democracy activists in Tiananmen Square, “politically sensitive� would be an immense understatement in describing the tension in Beijing and permeating the rest of the mainland.

The Chinese government has been here before:  The 1989 Tiananmen demonstrations were organized with help of a “new” communications technology called a fax machine.  “Rogue” fax machines (outside the control of the Chinese government) scattered in universities across the country provided a key platform for organizing and free expression.  Similarly, text messaging, blogs, and other social media platforms have unleashed a torrent of political discourse in recent years — from the incendiary to the mundane — as 300 million Chinese have quickly embraced the Internet and other communications technologies. Twitter has become immensely popular as a way for sharing politically sensitive news, and text messaging has been used to organize protests around community concerns.

The current social media blackout serves as a sharp reminder of how vital these platforms are for enabling unfettered speech and grassroots democratic reform movements. Afraid of being held accountable by its own people, the Chinese government once again looks to shut down online discourse over the Tiananmen Square incident and deny an entire generation of Chinese access to a key piece of their country’s history.

Promoting global Internet freedom must be a core priority in the U.S.’s foreign and domestic policy. The democratic revolution (and its iconic Tank Man) may not be televised—but it could be online.

CDT and the Electronic Frontier Foundation filed a “friend of the court” brief late last week in a case in Washington State challenging a refusal by a local library system to “unblock” or remove content filtering software that blocks library users’ access to lawful Internet websites. We argued that the refusal to unblock violates the First Amendment, as well as a key U.S. Supreme Court decision. We also explained in detail that Internet access in libraries is particularly important in the rural communities at issue in the Washington case.

Back in 2003, the Supreme Court upheld the Children’s Internet Protection Act (”CIPA”), in which Congress required that libraries that receive federal funds must use filtering software to block content thought to be harmful to minors. CIPA was unclear, however, on whether adults would be able to avoid the filters. Three Justices thought that CIPA was unconstitutional in all instances, but the six Justices who voted to uphold CIPA had to strain to find a way to find the law to be constitutional. Since the text of the statute was unclear, the Justices instead – very unusually – directly relied on the statements of the U.S. Solicitor General in oral argument before the court, who assured the court that CIPA did in fact allow adults to avoid the filters.
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Recently the Minnesota Department of Public Safety sent a seven-page list of off-shore gambling websites to 11 ISPs demanding that all access to those sites by state residents be blocked. This misguided action by the MDPS to scrub the Internet of websites it objects to is purportedly based on Federal law; however, the law cited in the letters doesn’t apply to ISPs or their customers’ access to remote websites. More broadly, like Kentucky’s recent attempt to seize domain names, this kind of state interference with the Internet raises substantial constitutional concerns.
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South Carolina Attorney General Henry McMaster learned an important lesson today: You don’t push Craigslist into a corner and then poke it with a sharp stick because Craigslist will bite back.

Tired of being harassed, browbeat and legally threatened, Craigslist today sued McMaster asking a federal court seeking declaratory relief and a restraining order with respect to the criminal charges; essentially Craigslist is asking the court to tell the S.C. AG to shut up and go away forever.

Meanwhile, last Friday McMaster said he had “no choice” but to open a criminal investigation involving Craigslist after the online classified ad site refused to roll over on its Constitutionally protected rights and do McMaster’s bidding, a move Craigslist said would require it “to take down the craigslist sites for South Carolina in their entirety.”

Now we hear that McMaster is calling the Craigslist suit “good news,” which is befuddling because the S.C. taxpayers are likely going to have to pony big bucks to pay for the Craigslist legal bills (unless McMaster backs down right away), which can easily run $250,000 or more.

The bottom line here hasn’t changed since McMaster decided to start his grandstanding: Craigslist is constitutionally protected from having liability for content placed on its site by users. It has to be that way otherwise the chill thrown over free expression on the Internet would be devastating.

Perhaps federal prosecutors in Los Angeles are starting to get the message that not every bad act should be a federal crime. At what was meant to be a sentencing hearing, a federal judge indicated yesterday that he needs more time to weigh dismissing the indictment against Lori Drew, the St. Louis woman convicted under the Computer Fraud and Abuse Act—an anti-hacking law—for cyberbullying. “Using this particular statute in the particular way is so weird,” said Judge George Wu, according to an online Wired article. CDT couldn’t agree more, as we and others argued in an amicus brief last August.

Drew created a fake MySpace profile to flirt with and taunt her daughter’s classmate, who tragically killed herself after being rejected by Drew posing as the teenage boy “Josh Evans.� As reprehensible as her conduct was, the theory prosecutors used to hold her responsible was nothing short of absurd—that by violating MySpace’s terms of service (lying about her identity) she had gained unauthorized access to the MySpace servers, a misdemeanor under a statute aimed at combating computer hacking. While the suicide was tragic and it is regrettable that Missouri’s harassment law did not at the time allow a state prosecution of Drew, allowing this conviction to stand would set a precedent that would turn any terms-of-service violation into a federal crime. Under the government’s theory, anyone who uses a false name, age or address to protect his or her privacy, avoid spam, or just joyride on a social media service under an assumed name and identity, commits a federal crime. Thankfully, it seems Judge Wu is catching on: During the proceeding yesterday, he challenged the government by asking whether “conduct . . . done every single day by millions and millions of people� really is a misdemeanor. Well, it shouldn’t be.