The year was 1995 and the biggest threat to Internet free speech was a bill called the “Communications Decency Act.” If passed, the bill threatened to criminalize all manner of constitutionally protected speech under the guise of keeping “indecent” material from being viewed by children.

Momentum for passage of the bill was enormous. The bill passed House with barely a hint of opposition. The vote in the Senate was little better; only 16 Senators bucked the political headwinds and remained steadfast in their vision of the Internet as a new and exciting ground for free expression and innovation. Among those voting against the CDA was Senator Joe Lieberman. And he proved to be right about the CDA — a federal court immediately enjoined the enforcement of the new law, and 18 months later the Supreme Court ruled that it was unconstitutional.

What a difference a decade makes.

Last week Senator Lieberman sent a letter demanding that the Google-owned video site YouTube scour its user contributed online offerings and remove any that smacked of supporting terrorism or carrying threatening messages fomenting terrorism. Google appropriately reviewed the YouTube videos and removed 80 of them from the site because they violated YouTube’s long-established terms of service agreement. But Lieberman demanded more. He insisted that YouTube begin to proactively censor content based on its origin alone, regardless of what the video contained. It is an outlandish request and cuts against First Amendment freedoms.

Beyond the clear constitutional prohibition against mandating content restrictions, Internet censorship is, frankly, highly unlikely to be effective. Internet-based content isn’t like the open ranges of the Wild West, able to be fenced off with barb wire. Shutting off one particular access point is likely to spawn two or three more and all outside the reach of the government trying to shut off access. When you come right down to it, Internet censorship is little more than virtual game of Whack-A-Mole.

Senator Lieberman should realize this, especially considering his courageous vote against the CDA. Let’s hope that courage, once found, is found again, and the Senator regains his vision of the Internet as a platform for openness, innovation and free expression.

Expanded reading on Lieberman’s letter in our Huffington Post blog entry.

Proving again the adage that “bad cases make bad law,” the federal U.S. Attorney in Los Angeles today obtained an indictment of a woman named Lori Drew, a mother in Missouri who is alleged to have created a false profile on MySpace (posing as a teenage boy) that led a neighboring girl to commit suicide. Background on the case can be found in the Washington Post.

The incident is a horrible and tragic one, and if the allegations are true, Ms. Drew could certainly face civil liability for her actions, and – at least under some states’ laws – she could face state criminal liability as well. But just because a grievous wrong may have been committed does not mean under our system that there should be a federal case to address the wrong.

If the theory of today’s indictment is allowed to stand, it would represent a gross and inappropriate expansion of federal power to regulate speech and communications over the Internet. It is important to understand the underlying “crime” here. The indictment does not really have anything to do with the alleged mistreatment of the girl in this case – the alleged crime is the asserted fact that Ms. Drew did not follow MySpace’s “terms of service.” The charges are based on an anti-hacker statute, and in this indictment, the “victim” is MySpace, not the girl. (more…)

Last week, a federal trial court in New Hampshire held that a website that enables singles and “swingers” to find sexual partners may be sued by a woman who was the subject of a fake profile created by an unknown imposter. The New Hampshire District Court in Jane Doe v. Friendfinder Network (No. 07-CV-286) ruled that Section 230 of the Communications Decency Act (47 U.S.C. § 230), which generally protects website operators from being held responsible for illegal content posted by others, doesn’t bar Doe’s claim against AdultFriendFinder.com for violating her “right of publicity” under New Hampshire law.

While I have sympathy for the woman – I certainly wouldn’t want a fake profile of me on such a site – CDT is concerned with the legal precedent that might be created in this case. If Section 230 doesn’t bar state right-of-publicity claims against Internet intermediaries, popular user-generated-content sites – like YouTube.com where thousands of videos are posted each day, undoubtedly without the consent of many of the people in the videos – could soon face a wave of costly lawsuits.

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Last December CDT and several other organizations submitted a friend-of-the-court (“amicus”) brief urging the Seventh Circuit Court of Appeals to uphold a lower court decision in favor of Craigslist.org. We are happy to report that on March 14 the federal appeals court did just that: it ruled that Craigslist can’t be held liable for discriminatory housing ads posted by the site’s users in violation of the Fair Housing Act. (Chicago Lawyers’ Committee for Civil Rights Under Law v. Craigslist, No. 07-1101). The court held that Section 230 of the Communications Decency Act (47 U.S.C. § 230) granted Craigslist immunity from FHA claims.

While the result of the case is precisely what we advocated– that Craigslist should not be held responsible for arguably illegal online content posted by others – the court’s opinion is a bit murky and has language that might prove to be unhelpful in future Section 230 cases.
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Free speech lost a devoted defender late last week. Marv Johnson, who had fought to protect free speech at the American Civil Liberties Union for much of his professional career, passed away after a long struggle with illness.

We, and everyone at CDT, mourn the loss of Marv. We will miss his quick wit and sense of humor, teamwork, and his unfailing willingness to step up to the plate when free speech was on the line. And it often is. Once, Marv volunteered to testify at a hearing in the House of Representatives that everyone knew was going to be difficult for the sole witness who was to advocate for free speech. Marv took every arrow and stone that those advocating limits on speech threw at him, and even caught a couple and threw them right back. Sometimes, it takes courage to be a champion of liberty, and Marv demonstrated that courage.

We have fond memories of visits to Capitol Hill with Marv to caution members of Congress about proposed assaults on the First Amendment. In particular, Marv (and we) would relish our visits when accompanied by friends from across the political spectrum – making clear to the folks on the Hill that both liberals and conservatives thought a particular free-speech-impinging bill on the agenda was a bad (and unconstitutional) idea.

We will miss Marv’s insights and dedication to the First Amendment.

– Greg Nojeim and John Morris, Center for Democracy & Technology

Yesterday, I attended the First Annual Freedom of Information Day Celebration at American University’s Washington College of Law (WCL) to kick off Sunshine Week (March 16-22), which celebrates government transparency and freedom of information.

Each year Sunshine Week coincides with the birthday (March 16) of James Madison, who famously wrote in 1822:

“A popular government without popular information or the means of acquiring it, is but a prologue to a farce, or a tragedy, or perhaps both. Knowledge will forever govern ignorance, and a people who mean to be their own governors, must arm themselves with the power which knowledge gives.”

Yesterday morning’s keynote speaker was Prof. Robert Vaughn of WCL, who is better known as the plaintiff in the 1973 D.C. Circuit case Vaughn v. Rosen. This seminal Freedom of Information Act (FOIA) case set forth the right of a FOIA plaintiff to ask the court to order the government agency defendant to provide a list of the documents that are responsive to the plaintiff’s FOIA request but that the government claims are exempt from disclosure, and to include the agency’s specific justification for withholding each document. This list is also known as a “Vaughn Index.”
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Sunshine week, celebrated nationwide, is dedicated to open government, with events surrounding Freedom of Information and government transparency. Sunshine Week 2008 this year includes some great talks happening in Washington, D.C. and around the country, all focused on the concept of government openness. Yesterday was the National Freedom of Information Day, held on James Madison’s birthday; Madison was a supporter of government openness.

I attended the First Amendment Center’s Freedom of Information Conference on Friday, where there were great panels talking about the Freedom of Information Act (FOIA) and how publicly useful information is often unavailable. One compelling example of this is information suppressed about public infrastructure, like dams and bridges. As one conference participant asked: “What, are you going to hide a dam?”

The FOIA is an important tool for government transparency, but a growing number of Americans see the government as incresasingly secretive, according to a Sunshine Week poll. On a hopeful note, though, almost 90% of respondents said that open government was an important consideration in their presidential and congressional candidates. Maybe the candidates will get the message and we can get to fixing FOIA.

I’m looking forward to the rest of the Sunshine Week events here in D.C., especially Sunlight Foundation’s event with Lawrence Lessig, and other events in D.C.

The foolishness of state legislators when it comes to the Internet apparently knows no limits. After years of losing efforts to censor content online, a new evil has apparently been identified: anonymity. A Kentucky representative has filed a bill to make it illegal to post online without registering a real name, physical address, email address and including full name with all postings. The bill includes hefty fines for sites that permit anonymous speech.

It would be easy to dismiss this bill as simply the uninformed effort of a not very Internet savvy legislator, but to do so misses the point. Anonymity on the Internet is under attack. Whether it was the provocative comment by Donald Kerr, the Principal Deputy Director of National Intelligence who famously declared last fall that “Protecting anonymity isn’t a fight that can be won,” or the zeal with which the nation’s state attorneys general have pursued age verification for social networking sites, the view that anonymous speech is dangerous speech has plainly taken hold.

There are of course times even on the Internet where establishment of identity maybe important, but we seem to have forgotten the value of anonymous speech to our constitutional democracy. As the Supreme Court has made clear, “Anonymity is a shield from the tyranny of the majority.” McIntyre V Ohio Elections Commission (1995). Anonymity is what protects people from expressing an unpopular political view in a community where the majority holds vastly different political views and allows people to safely provide information about government misconduct. And for those living in repressive societies, anonymous speech is an enabler of human rights and political reform. If it was good enough for Publius, it should be good enough for the Internet.

The proposed Kentucky law is particularly dangerous because it not only requires the unmasking of all speakers in all circumstances, it exposes their personal information to potentially millions of people, putting privacy at risk. And since it is the website, rather than the individual, who is on the hook for fines, it puts all Internet sites in the role of gatekeeper, exactly what Section 230 of the Communications Decency Act, 47 USC § 230 was intended to prevent.

It’s no small feat to draft a law that is unconstitutional, clearly preempted by federal law and unenforceable. But many state legislatures are in session and it’s only Tuesday.

I read with horror the latest issue (Dec. 2007) of Indiana University’s Federal Communications Law Journal. The leading “article” is a transcript of a November 2005 debate among Federal Communications Commission (FCC) Chairman Kevin Martin and others about expanding the FCC’s regulation of indecency. During the debate, in response to a discussion about radio “shock jocks,” Chairman Martin bluntly said, “If you really want to talk about kids, you could hold parents criminally liable for allowing them access to this . . . that would really protect kids.” (p. 25)

Adam Thierer at the Progress & Freedom Foundation did a good job of analyzing this outrageous proposal, which flies in the face of both the right to freedom of expression and the respected values of individual choice and privacy of the home.

What’s also shocking about Chairman Martin’s statement is that he wasn’t referring to prosecuting parents for allowing their minor children to access indecent broadcast radio programming, but instead to satellite radio programming. It’s no secret that the FCC wants to get its regulatory hands on satellite, cable, and even Internet content, but so far Congress and the courts have failed to find a justification for such expanded FCC jurisdiction.
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Last week Wikileaks announced that it discovered that U.S. officials at Guantanamo Bay were secretly altering various websites to promote the detention center in the news and online generally.

Being a defender of the First Amendment, CDT has always supported the right of citizens to speak anonymously in our free and democratic society. We’ve noted the practical value of this right, which encourages the sharing of valuable ideas and information that might otherwise go unexpressed due to fear of reprisal. And we certainly support the government’s participation in online discussion sites – when that participation is acknowledged. But the U.S. military’s anonymous tinkering with online information for apparent public relations purposes raises some real concerns. This also raises some tough First Amendment questions, but without a doubt it’s a very serious issue of government transparency, or lack thereof.

A couple years back, it came to light that some federal agencies had produced fake “news” stories (Video News Releases) without notice to viewers that the federal government produced them. The Government Accountability Office found that this was a violation of the law. It also reviewed at least two instances in which ostensibly independent journalists were paid to promote Administration policies. The GAO found one journalist’s contract to be a violation of the law and the other not, still the revelations sparked enough of a public outcry to inspire President Bush to terminate the use of this outrageous tactic.

One now wonders whether President Bush would approve of Gitmo officials on his watch anonymously altering Wikipedia pages. According to Wikileaks, the officials are also “systematic[ally] posting unattributed ‘self praise’ comments on news organization web sites in response to negative press” and “boosting pro-Guantanamo stories on the internet news site Digg.” While the military’s motivation to do these things is obvious, the question is whether it or any sector of the government should be able to secretly push unattributed government propaganda for consumption in the United States.

Some law already exists on this issue. Appropriations acts since 1951 have routinely included the prohibition: “No part of any appropriation contained in this or any other Act shall be used for publicity or propaganda purposes within the United States not heretofore authorized by Congress.” This is what the GAO relied on in evaluating the Video News Releases and the public relations contracts with the journalists, and the GAO has interpreted this language as prohibiting “covert propaganda” – meaning PR communications not attributed to the government. But is this enough? Some members of Congress didn’t think so. In 2005, two similar bills were introduced: the “Federal Propaganda Prohibition Act” (H.R. 373) and the “Stop Government Propaganda Act” (S. 266). Both bills died in committee.

But perhaps Congress should revisit the question. To be sure, there are some very difficult legislative drafting challenges. We would not want to impose inappropriate free speech constraints on federal employees who are not acting in their official capacity. And it may be reasonable in some narrow circumstances to allow the government to post unattributed content on websites that are clearly aimed at overseas populations. But it seems crystal clear that our government should not be permitted to manipulate online discussion forums and information sources aimed at Americans, without disclosing the governmental source of the changes or new information.

When the White House issues a press release, or a government-created Public Service Announcement is broadcast on TV, the fact that the government is the source of the information is clear, and the public can take it for what it’s worth. But secretly altering Wikipedia pages or posing as regular citizens when commenting on online news stories is something entirely different. The public debate – the marketplace of ideas, which is key to a free and democratic society – is skewed when the government talks but fails to identify itself. The problem isn’t only that taxpayer money has been used to contract for the spin services of others (as in the fake “news” videos) – but that taxpayer money is now paying the salaries of government officials who are themselves acting as the spin doctors without identifying themselves as such. This is an egregious violation of the principle of government transparency. It may be time for Congress to look again at this issue.