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'Public' online spaces don't carry speech, rights

By Anick Jesdanun

AP Internet Writer / July 6, 2008

Internet Law Internet Free Speech Online Legal Issues

NEW YORK—Rant all you want in a public park. A police officer generally won't eject you for your remarks alone, however unpopular or provocative.

Say it on the Internet and you'll find that free speech and other constitutional rights are anything but guaranteed.

Companies in charge of seemingly public spaces online wipe out content that's controversial but otherwise legal. Service providers write their own rules for users worldwide and set foreign policy when they cooperate with regimes like China.

They serve as prosecutor, judge and jury in handling disputes behind closed doors.

The governmental role that companies play online is taking on greater importance as their services -- from online hangouts to virtual repositories of photos and video -- become more central to public discourse around the world. It's a fallout of the Internet's market-driven growth, but possible remedies, including government regulation, can be worse than the symptoms.

Dutch photographer Maarten Dors met the limits of free speech at Yahoo Inc.'s photo-sharing service, Flickr, when he posted an image of an early-adolescent boy with disheveled hair and a ragged T-shirt, staring blankly with a lit cigarette in his mouth.

Without prior notice, Yahoo deleted the photo on grounds it violated an unwritten ban on depicting children smoking. Dors eventually convinced a Yahoo manager that -- far from promoting smoking -- the photo had value as a statement on poverty and street life in Romania. Yet another employee deleted it again a few months later.


"I never thought of it as a photo of a smoking kid," Dors said. "It was just of a kid in Romania and how his life is. You can never make a serious documentary if you always have to think about what Flickr will delete."

There may be legitimate reasons to take action, such as to stop spam, security threats, copyright infringement and child pornography, but many cases aren't clear-cut, and balancing competing needs can get thorny.

"We often get caught in the middle between a rock and a hard place," said Christine Jones, general counsel with service provider Inc. "We're obviously sensitive to the freedoms we have, particularly in this country, to speak our mind, (yet) we want to be good corporate citizens and make the Internet a better and safer place."

In Dors' case, the law is fully with Yahoo. Its terms of service, similar to those of other service providers, gives Yahoo "sole discretion to pre-screen, refuse or remove any content." Service providers aren't required to police content, but they aren't prohibited from doing so.

While mindful of free speech and other rights, Yahoo and other companies say they must craft and enforce guidelines that go beyond legal requirements to protect their brands and foster safe, enjoyable communities -- ones where minors may be roaming.

Guidelines help "engender a positive community experience," one to which users will want to return, said Anne Toth, Yahoo's vice president for policy.

Dors ultimately got his photo restored a second time, and Yahoo has apologized, acknowledging its community managers went too far.

Heather Champ, community director for Flickr, said the company crafts policies based on feedback from users and trains employees to weigh disputes fairly and consistently, though mistakes can happen.

"We're humans," she said. "We're pretty transparent when we make mistakes. We have a record of being good about stepping up and fessing up."

But that underscores another consequence of having online commons controlled by private corporations. Rules aren't always clear, enforcement is inconsistent, and users can find content removed or accounts terminated without a hearing. Appeals are solely at the service provider's discretion.

Users get caught in the crossfire as hundreds of individual service representatives apply their own interpretations of corporate policies, sometimes imposing personal agendas or misreading guidelines.

To wit: Verizon Wireless barred an abortion-rights group from obtaining a "short code" for conducting text-messaging campaigns, while LiveJournal suspended legitimate blogs on fiction and crime victims in a crackdown on pedophilia. Two lines criticizing President Bush disappeared from AT&T Inc.'s webcast of a Pearl Jam concert. All three decisions were reversed only after senior executives intervened amid complaints.

Inconsistencies and mysteries behind decisions lead to perceptions that content is being stricken merely for being unpopular.

"As we move more of our communications into social networks, how are we limiting ourselves if we can't see alternative points of view, if we can't see the things that offend us?" asked Fred Stutzman, a University of North Carolina researcher who tracks online communities.

First Amendment protections generally do not extend to private property in the physical world, allowing a shopping mall to legally kick out a customer wearing a T-shirt with a picture of a smoking child.

With online services becoming greater conduits than shopping malls for public communications, however, some advocacy groups believe the federal government needs to guarantee open access to speech. That, of course, could also invite meddling by the government, the way broadcasters now face indecency and other restrictions that are criticized as vague.

Others believe companies shouldn't police content at all, and if they do, they should at least make clearer the rules and the mechanisms for appeal.

"Vagueness does not inspire the confidence of people and leaves room for gaming the system by outside groups," said Lauren Weinstein, a veteran computer scientist and Internet activist. "When the rules are clear and the grievance procedures are clear, then people know what they are working with and they at least have a starting point in urging changes in those rules."

But Marjorie Heins, director of the Free Expression Policy Project, questions whether the private sector is equipped to handle such matters at all. She said written rules mean little when service representatives applying them "tend to be tone-deaf. They don't see context."

At least when a court order or other governmental action is involved, "there's more of a guarantee of due process protections," said Robin Gross, executive director of the civil-liberties group IP Justice. With a private company, users' rights are limited to the service provider's contractual terms of services.

Jonathan Zittrain, a Harvard professor who recently published a book on threats to the Internet's openness, said parties unhappy with sensitive materials online are increasingly aware they can simply pressure service providers and other intermediaries.

"Going after individuals can be difficult. They can be hard to find. They can be hard to sue," Zittrain said. "Intermediaries still have a calculus where if a particular Web site is causing a lot of trouble ... it may not be worth it to them."

Unable to stop purveyors of child pornography directly, New York Attorney General Andrew Cuomo recently persuaded three major access providers to disable online newsgroups that distribute such images. But rather than cut off those specific newsgroups, all three decided to reduce administrative hassles by also disabling thousands of legitimate groups devoted to TV shows, the New York Mets and other topics.

Gordon Lyon, who runs a site that archives e-mail postings on security, found his domain name suddenly deactivated because one entry contained MySpace passwords obtained by hackers.

He said MySpace went directly to domain provider GoDaddy, which effectively shut down his entire site, rather than contact him to remove the one posting or replace passwords with asterisks. GoDaddy justified such drastic measures, saying that waiting to reach Lyon would have unnecessarily exposed MySpace passwords, including those to profiles of children.

Meanwhile, in response to complaints it would not specify, Network Solutions LLC decided to suspend a Web hosting account that Dutch filmmaker Geert Wilders was using to promote a movie that criticizes the Quran -- before the movie was even posted and without the company finding any actual violation of its rules.

Service providers say unhappy customers can always go elsewhere, but choice is often limited.

Many leading services, particularly online hangouts like Facebook and News Corp.'s MySpace or media-sharing sites such as Flickr and Google Inc.'s YouTube, have acquired a cachet that cannot be replicated. To evict a user from an online community would be like banishing that person to the outskirts of town.

Other sites "don't have the critical mass. No one would see it," said Scott Kerr, a member of the gay punk band Kids on TV, which found its profile mysteriously deleted from MySpace last year. "People know that MySpace is the biggest site that contains music."

MySpace denies engaging in any censorship and says profiles removed are generally in response to complaints of spam and other abuses. GoDaddy also defends its commitment to speech, saying account suspensions are a last resort.

Few service providers actively review content before it gets posted and usually take action only in response to complaints.

In that sense, Flickr, YouTube and other sites consider their reviews "checks and balances" against any community mob directed at unpopular speech -- YouTube has pointedly refused to delete many video clips tied to Muslim extremists, for instance, because they didn't specifically contain violence or hate speech.

Still, should these sites even make such rules? And how can they ensure the guidelines are consistently enforced?

YouTube has policies against showing people "getting hurt, attacked or humiliated," banning even clips OK for TV news shows, but how is YouTube to know whether a video clip shows real violence or actors portraying it? Either way, showing the video is legal and may provoke useful discussions on brutality.

"Balancing these interests raises very tough issues," YouTube acknowledged in a statement.

Unwilling to play the role of arbiter, the group-messaging service Twitter has resisted pressure to tighten its rules.

"What counts as name-calling? What counts as making fun of someone in a way that's good-natured?" said Jason Goldman, Twitter's director of program management. "There are sites that do employ teams of people that do that investigation ... but we feel that's a job we wouldn't do well."

Other sites are trying to be more transparent in their decisions.

Online auctioneer eBay Inc., for instance, has elaborated on its policies over the years, to the extent that sellers can drill down to where they can ship hatching eggs (U.S. addresses only) and what items related to natural disasters are permissible (they must have "substantial social, artistic or political value"). Hypothetical examples accompany each policy.

LiveJournal has recently eased restrictions on blogging. The new harassment clause, for instance, expressly lets members state negative feelings or opinions about another, and parodies of public figures are now permitted despite a ban on impersonation. Restrictions on nudity specifically exempt non-sexualized art and breast feeding.

The site took the unusual step of soliciting community feedback and setting up an advisory board with prominent Internet scholars such as Danah Boyd and Lawrence Lessig and two user representatives elected in May.

The effort comes just a year after a crackdown on pedophilia backfired. LiveJournal suspended hundreds of blogs that dealt with child abuse and sexual violence, only to find many were actually fictional works or discussions meant to protect children. The company's chief executive issued a public apology.

Community backlash can restrain service providers, but as Internet companies continue to consolidate and Internet users spend more time using vendor-controlled platforms such as mobile devices or social-networking sites, the community's power to demand free speech and other rights diminishes.

Weinstein, the veteran computer scientist, said that as people congregate at fewer places, "if you're knocked off one of those, in a lot of ways you don't exist."

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Harvard Law School professor addresses Internet legal issues

Internet Law Internet Free Speech Online Legal IssuesProfessor John Palfrey Jr., director of the Berkman Center for Internet and Society at Harvard Law School, speaks at Bridgewater State College on the subject of legal developments and challenges surrounding the Internet.

November 4, 2005

Professor John G. Palfrey Jr., executive director of the Berkman Center for Internet and Society at Harvard Law School and a lecturer on law at Harvard, delivered an address about Internet developments to the Bridgewater State College community, and he opened his remarks by saying, "There is something that is absolutely amazing happening with respect to the Internet, but I think that what happened between 1995 and 2005 is just the opening act."

Professor Palfrey, who holds degrees from Harvard, Yale and the University of Cambridge in England, was the guest of the faculty of the Department of Communication Studies at BSC, and was welcomed to the campus by Dr. Jabbar Al-Obaidi, chair of the department, and Ms. Kris Markman, a member of the department's faculty.

The program took place in the Heritage Room of the Maxwell Library and was attended by students, faculty and staff. "We at Bridgewater are very pleased to have such a recognized authority on the impact of the Internet on society join us for this occasion," said Dr. Al-Obaidi.

Professor Palfrey predicted "huge further innovation of this medium, with enormous potential for the democratization of society." He said there are significant trends to watch.

"Along with more innovation, there is more creativity visible today than ever before and, frankly, I worry that some of the legal issues now surrounding the Internet may delay or impede some of the changes taking place," he said. "We hear a great deal about legal moves to stop file sharing on the Internet, the swapping of music and movies are examples, but the issues go far beyond that."

Professor Palfrey cited the "Grokster case" as an example. "If we look all the way back to the early 1980s, we see consumer electronic companies, such as Sony, developing technologies such as the VCR. In 1984, the Supreme Court reviewed a case brought by the movie industry against the manufacturers of the VCR," he explained.

"In a 5-4 decision, the Supreme Court ruled that the manufacture of VCRs was legal - even though copyright violations could take place with its use - as long as the device … is capable of substantial 'non-infringing' uses. In other words, if the VCR could be used legally, it should be allowed to be used."

By 1999, said Professor Palfrey, the Internet was up and functioning and creating its own copyright problems. "The Internet exploded like few other technological innovations in history," he said. "A number of industries began to feel a real disruptive impact because of the Internet," he continued, "and one of the first was, which upset profoundly the book retailing business."

Enormous amounts of capital poured into this new technology, Professor Palfrey said, "and lots more innovation occurred." At this point, a "push-back" movement began against the Internet, with the music industry in the lead and the movie industry once again involved.

"When the MP3 format came into popular use, the record executives worried that customers would stop going to Tower Records and would, instead, download music files," he said. But Hollywood had thrived - despite its initial fears - on the VCR and later DVD formats, which opened up new markets to sell movies.

"Nevertheless, music and movie industry executives ran to the Congress asking for more laws, which they got," he said, but then "in 1999 along comes Napster, a genius idea that allows peer-to-peer sharing of music files, completely circumventing the normal distribution channels. Nobody made any money - it was all there for free."

With 60 million users, Napster threatened to disrupt the music industry. Executives debated whether to sue individuals sharing the copyrighted music illegally or the companies which produced the technology allowing individuals to do so. "Wisely, they chose the company and the judge in the case shut down Napster," Professor Palfrey said.

But advances in technology continued to march on, making it difficult - or impossible - to sue any company because no longer would there be a central server, which Napster had. The age "peer-to-peer" sharing had been introduced.

"Napster had control over what was shared because of the central server. Now that argument began to be lost as well because innovation removed the central server," he said. "If one person is sharing music with another, there is no single server and no one company to sue. Peer-to-peer networks changed everything."

The Grokster case was the result, said Professor Palfrey. "This is chapter two of the story. The next generation of technologies, such as Grokster and Kazza, used the simple premise that my computer goes to your computer, so why don't we share our music? Do you have that song I want?"

That development has led to lawsuits by the music and movie industries to sue individuals. "More people were using this system than voted for George Bush for president, so you get an idea of the magnitude of this movement," he said. As a result, "we have a large number of people who are doing something that is plainly unlawful."

This is a direct violation of the copyright law, but Professor Palfrey said the law itself may be outdated. "At the core of this whole dispute is the fact that it is illegal to download music files without paying for them, because copyright laws protect the companies," he said.

Looking ahead, Professor Palfrey sees many thousands of lawsuits emanating from this ongoing dispute. "At the moment, there are already about 10,000 such cases in process, and most get settled by violators who pay $3,000 for the violation." But the issue is still in debate because courts have ruled - as they did in 1984 - that peer-to-peer networks can, like the VCR, be used for "substantial non-infringement applications."

Initially, Grokster was not shut down by the courts as a result, because the "technology shouldn't be banned" but the music and movie industries continue to sue, successfully, individuals because they are making the choice to use it illegally. Grokster ran afoul of the law when the case reached the Supreme Court because "if you market the technology in a way that induces people to violate copyright law, then you violate the law with that technology."

The controversy continues, Professor Palfrey said, as does the rapid development and expansion of the Internet. "These are of course exciting and interesting times in technology, but I hope that we don't reduce or diminish innovation because of legal threats," he concluded. - David K. Wilson, '71, Office of Public Affairs


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