So, South Carolina Attorney General Henry McMaster, who had threatened to bring criminal charges against Craigslist by last Friday if the company failed to comply with his request to eliminate content he deemed objectionable to the fair citizens of his state, has apparently blinked.
Meanwhile, Craigslist CEO Jim Buckmaster has fired back with a blog post on the company web site demanding an apology from McMaster for singling-out Craigslist as a high-profile target:

Have you fully considered the implications of your accusations against Craigslist? What’s a crime for Craigslist is clearly a crime for any company. Are you really prepared to condemn the executives of each of the mainstream companies linked above, and all the others that feature such ads, as criminals? Craigslist may not matter in your world view, despite our popularity among your constituents, but mightn’t you want an endorsement from any of the SC newspapers for your gubernatorial campaign, whose publishers you’ve just labeled as criminals? Do you really intend to launch a criminal investigation against the phone company?
-Craigslist CEO, Jim Buckmaster on his blog, 5/18/09

As we foreshadowed in our blog post last week, Section 230 protects companies like Craigslist from being held liable for content created by users and the actions by McMaster are flatly wrong.

Over the last few weeks, numerous state Attorneys General (and the Cook County Sheriff) have been tossing around threats against Craigslist, the online classified ad forum. The AGs were claiming that Craigslist is responsible for “erotic services� ads placed by Craigslist users. The AGs were demanding that Craigslist shut down parts of its service and/or censor postings made by its users. At least one AG – in South Carolina – said that he will bring criminal charges against Craigslist if it fails to eliminate any content to which that AG objects.

These threatened charges both violate the U.S. Constitution and directly conflict with federal law. Federal law is crystal clear that Craigslist has no liability under state law for content posted by users. If a prostitute advertises illegal services on Craigslist and then commits a crime, the prostitute may be guilty, but Craigslist is not. In 1996, Congress passed a law – known as “Section 230� – for the very reason that it wanted to leave sites like Craigslist free to adopt remedial measures against unsavory content – as Craigslist has done – without fear of becoming liable as the publisher of the content posted by users.
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It’s troubling that the Internet and the wonderfully innovative service known as Craigslist have been cast as major players in the recent tragedy of a young woman’s death. Just because the alleged killer found his victim by trolling the adult ads section of Craigslist, the media has hung the nickname “the Craigslist Killer” on him. The clever alliteration aside, the brutal truth is that neither the Internet nor Craigslist have anything substantive to do with this case.

As CDT President Leslie Harris’ Huffington Post column, titled “Because ‘Classified Ad Killer’ Doesn’t Have the Same Ring,’” points out today:

The danger of this alarmist, tabloid response to all-things-Internet, is not only that it needlessly frightens people away from using safe, effective Internet tools, but that it undermines the tremendous social and economic value that innovative Internet communities like Craigslist, MySpace and Facebook have created for users around the world.

One day soon, we can only hope, we’ll stop treating the Internet like it’s anything other than the incredibly open, innovative and collaborative productivity tool that it really is.

A Department of Homeland Security (DHS) intelligence assessment was published to the Internet this week, warning that opposition to federal government policies could foment a resurgence of “rightwing extremism.� The DHS report is the latest indication that many law enforcement agencies regard advocacy groups as intelligence targets and lawful political dissent as a potential sign of terrorism.

In addition to the recession and the election of Barack Obama, the DHS report identified opposition to illegal immigration, expanded social programs, abortion and gun control as factors galvanizing radicalization. No specific groups are listed; instead, the DHS report broadly characterizes these potential terrorists as either “primarily hate-oriented� or “mainly anti-government.� Some conservatives and libertarians take the report as an indictment of their values. However, this is not a left-versus-right issue, and those blogs framing it that way are missing the point. Rather, the real problem is figuring out how lawful dissent squares with efforts to fight terrorism and the persistent inability of domestic intelligence agencies to adequately draw the distinction.
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On Monday the folks running Google’s China operations began to notice a dramatic drop in YouTube traffic. By Tuesday afternoon YouTube had turned into a digital ghost town; traffic dropped to nearly zero, the company told the New York Times.

Chinese officials, big shocker, have given Google no official reason for shutting down access to the video platform, nor have they actually admitted shutting down the YouTube pipes. Instead, Chinese officials are engaged in their own fanciful brand of obfuscation. “Many people have a false impression that the Chinese government fears the Internet,” said Qin Gang, a spokesman for China’s Ministry of Foreign Affairs. “In fact it is just the opposite.” Sounds like some Chinese press aide has been reading a little too much George Orwell.

This incident makes me believe that the leaders of the Middle Kingdom are operating from a playbook published in some mythic tongue straight out of Tolkien’s Middle Earth, and there’s no Gandalf around to interpret. No company can possibly devise a coherent push back policy when there’s not even a set of rules to push against.

While Beijing may be operating with blinders on, the rest of the world is watching this game of geopolitical charades in crystal clear, high def. The 20th anniversary of the Tiananmen Square Massacre is fast approaching and the Chinese aren’t taking any chances that subversive digital propaganda will trickle into their country on the bitstream

These actions come as no surprise, or shouldn’t. There is a long history of China violating the international right of free expression. On Monday they flipped some switches, monitored some blinking LEDs on a console, and choked off YouTube’s air supply. Twenty years ago they did the same sort of thing, but did it with tanks, troops, bullets and blood.

How do you say very dangerous in Italian? How about Italian prosecutors filing criminal charges against four Google executives for the content of a video posted by a user. By all accounts, the video – an ugly three minute display featuring teenagers bullying a boy with Down’s syndrome – was quickly removed from the site and Google helped identify the perpetrators. But the prosecutors taking the extreme position that YouTube is legally responsible for all third parties content posted on its site, charged the Google executives with criminal defamation and privacy infringement.

While the United States and Europe may have different legal views about the scope free expression and protection of privacy, both have recognized that importance of protecting so-called intermediaries, ISPs and online platforms from liability for content posted by third parties. That legal protection has been crucial to the health and growth of the Internet. Without it, sites like YouTube would have to review each video before posting and make a legal judgment as to whether each complied with the laws of hundreds of countries. This is an undoable task that would write an end to the open Internet. We already have a medium where platform owners get to pick and chose among content and government gets to punish them for getting it wrong. Its called television.

It’s bad enough that Italian prosecutors are putting Google and every other online content platform at risk with their shenanigans. They are also setting a dangerous precedent, which can only strengthen the hand of repressive regimes that already exert iron-fisted control over the Internet.

This is not the first time a zealous European prosecutor tried this stunt. Germany went after a CompuServe manager for porn posted on the site and of course France charged Yahoo officials for permitting the sale of Nazi paraphernalia. In both cases, cooler heads ultimately prevailed. We can only hope that happens here. Until then, it’s molto pericoloso out there in cyberspace.

Yesterday’s Senate passage of its version of the big economic stimulus bill sets the stage for final negotiations between the House and Senate to come up with a final bill. As is often the case with major packages of legislation, there’s a risk of eleventh-hour additions for which the policy implications have not been clearly thought out.

Case in point: content filtering by ISPs. The Senate’s provisions to stimulate broadband deployment say that recipients of federal assistance should comply with interconnection and nondiscrimination requirements. Senator Feinstein has been pushing hard to add language specifying that ISPs may engage in “reasonable network management” — and here’s the kicker — “such as” efforts to combat illegal activity like “child pornography and copyright infringement.”
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Listen to CDT Vice President Ari Schwartz discuss the issues surrounding President Obama’s continued use of a Blackberry-like device during an appearance on NPR’s On the Media radio show :

Kentucky’s Court of Appeals correctly ruled this week that a domain name isn’t subject to seizure and forfeiture because it is not a “gambling deviceâ€? under a 1974 law providing for the confiscation of roulette wheels and craps tables. Although certainly not the most sweeping or surprising decision, the ruling is nonetheless a victory for CDT and other free expression advocates who recognize the threat that state seizure of domain names would pose to the smooth functioning of the Domain Name System (DNS) and Internet communication in general.

At issue was an October 2007 state court order allowing Kentucky to take control of 141 domain names associated with Internet gambling sites, all of which were located outside of Kentucky, most outside of the United States. The judge asserted staggeringly broad jurisdiction, and determined that Kentucky could seize the domain names because they allowed access to activity (gambling) that violated Kentucky law. CDT, the EFF, and the ACLU saw many glaring logical and Constitutional faults in the order and filed an amicus brief in support of an appeal challenging the seizure order. One of our concerns was that the Kentucky order set a bad example for repressive regimes around the world – governments like China would happily try to seize critical websites that are located outside of China.

Courts regularly move cautiously, issuing narrow, tailored rulings, and that was the case here. Rather than addressing the very real Constitutional concerns we raised in our brief, the Court granted the writ of prohibition because it “stretch[ed] credulity� to conclude that a domain name constituted a “gambling device.� CDT applauds this ruling and the implicit recognition of domain names’ role in Internet communications. As we wrote in December, a stable and reliable DNS is crucial to the continued growth the Internet, and should not be interfered with lightly.

The Commonwealth of Kentucky is appealing the decision, and CDT will continue to follow this case and advocate for a free and open Internet by filing a brief with the Kentucky Supreme Court. While the Court of Appeals decision achieved the right result, we will urge the higher court to address our Constitutional arguments against state interference with international Internet commerce.

Now that the dust is settling on the release of the Final Report of the Internet Safety Technical Task Force, I want to highlight a few important points that have been raised this week. The Task Force was formed through an agreement between MySpace and 49 state Attorneys General to look at technology that might be used to protect kids in social networking environments. The AGs were clearly looking for a technological “silver bulletâ€? to address what they and the popular media have portrayed as huge risks for kids on social networks; they didn’t get it.

The Task Force – run by the Berkman Center at Harvard Law School – reached a set of conclusions that undercut the common myths underlying the AGs assumptions. In simple terms, the Task Force concluded that:

– the risks to kids online are much less, and different, than popular perception holds, and
– there are no technologies that can or should be mandated or imposed to “solveâ€? the risks that kids do face online (like teen-on-teen cyberbullying).
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