"A foolish consistency is the hobgoblin of little minds"
Citizen Media Law Project reports that the judge who last week ordered the Wikileaks.org domain name be disabled today reversed his decision. See previous posts this week for background on the case.
UPDATE: Brief article from today’s NY Times about the judge’s order reversing last week’s decision.
David Pogue’s weekly column in the NY Times linked to a PBS Frontline video segment (part of its Growing Up Online series) titled The Child Predator Fear. Unlike most news treatments the Frontline piece does not raise hysteria. It focuses on a New Jersey family in which the mom fears stalkers lurking on Facebook and her teenage children possess common sense of online dangers. A telling moment: the mom voices specific concern about the safety of her attractive teenage daughters while the camera pans their faces. In other words, in sounding the alarm about Internet predation she is exposing her daughters to view of anyone who sees the video on television or online. The video closes with experts concluding that teenagers engage in risker behaviors and face more danger from their offline activities.
Fouad Mourtada, a 26-year old Moroccan computer engineer, created a Facebook profile in which he impersonated a Moroccan prince. Morocco was not amused. It convicted Mourtada of a criminal offense (the WS Journal article does not specify what it was), fining him and imposing a three-year jail sentence. There is a question whether Facebook turned over Mourtada’s identity to Moroccan authorities. The article quotes a Facebook spokesperson that while the company’s policies allow it to share information with police “when it has a good faith belief it is legally obligated to do so,” it did not share Mourtada’s identity with police in this case. Of course if a website is “legally 0bligated” to provide information to police then it is not “allowing” access to the information because it is not exercising discretion.
This case is reminiscent of the controversy over Yahoo!’s role in sharing with Chinese law enforcement the identity of pro-democracy dissidents whom were convicted of anti-Chinese activities, sentenced to long prison terms, and allegedly tortured. The imprisoned dissidents have sued Yahoo! twice for human-rights violations for the company’s involvement in their imprisonment; one suit was settled last November but another was filed this week. (See here and here for background.) I don’t want to overstate the parallels; the Yahoo! case involves speech that is legal under U.S. law and illegal under Chinese law. Yahoo!’s position is that it cooperated with Chinese authorities because, as a corporation doing business in China, it had to. That’s a safe legal argument but it ducks the complexity of the ethical issues. Mourtada’s phony Facebook profile–he claims it was a joke–may not rise to the same level of First Amendment protection as the dissidents’ speech but would not appear to have violated U.S. law if not defamatory or fraudulent. Facebook is certainly justified for terminating Mourtada’s account for violating its terms of use. So despite the distinctions between the two situations they share common elements. The Facebook platform can be used to engage in activities that might be unlawful or culturally discouraged in a particular country. This week I had a long conversation with a student critical of her country’s attempt to regulate Facebook because young people are using it for dating. The potential exists for Facebook or any social-networking site to cooperate with law enforcement to enforce local legal or cultural norms that would be antithetical to U.S. law or custom.
Interesting, thoughtful, and articulate student-driven discussion threads have developed on a number of recent posts. I need to generate new posts regularly to keep up with them.
Our sons are out of the house and we have abundant space so what are we doing? We’re expanding the kitchen. Before the kitchen walls could be pushed out the garage had to be relocated. Six weeks ago a crane came, picked up the garage, and plunked it in our small backyard right behind the house. A new foundation was dug, poured, and backfilled and today the crane returned. This is what it looked like.
BU Today has an interview about the Wikileaks.org shut-down with Computer Science Department chair Azer Bestavros. His point–that “once the information makes it to the Internet, it’s impossible to take it back”–has profound implications about the ability of anyone, governmental or private, to restrict speech. It’s a point that Larry Lessig makes in his discussion of the Pentagon Papers case in Code 2.0 (Chapter 12, for those following the program): “Publishing requires a publisher, and a publisher can be punished by the state. But if the essence or facts of publication are punished elsewhere first, then the need for constitutional protection disappears. Once the piece is published, there is no further legal justification for suppressing it.” Professor Bestavros’s conclusion will be familiar to anyone who has taken my Internet law course or read Code 2.0: “Places like this bank should use much better technologies to protect their content.” In other words make if more difficult to leak sensitive information; rely on architecture, not law.
Legal Blog Watch Alert discusses a story in the Boston Globe titled Grape Expectations: What Wine Can Tell Us About the Nature of Reality. The story explores the influence of price-based expectations, such as how wine drinkers will prefer a more expenseive bottle over a cheaper bottle, even though the wine is exactly the same and the only difference is the labeling and the price. The blog post notes the conclusion of the article: “it is possible to make a product more ‘effective’ by increasing its price.” Excellent news! Accordingly, from this day forward, reading A Foolish Consistency will cost $100/month.
See how much smarter you feel already?
A friend sent me a link to a compendium of polls an American views of the economy and foreign trade: http://www.pollingreport.com
An article today addresses a fear that I’ve had, and that is shared by many who lived through the assassinations of John Kennedy, Martin Luther King, and Bobby Kennedy–is Barack Obama more vulnerable to threats of harm than other politicians? The hope and optimism that are central to Obama’s appeal echo the tone and spirit of the two Kennedys and King. Bobby Kennedy and Martin Luther King were assassinated 40 years ago this spring, a year in which this country was bitterly divided over an unpopular war and was threatening to spin out of control. No one wants to mention it but the unease is there.
Wikileaks.org–which can’t be found using that domain address since a judge’s ruling last week, but which can still be viewed at http://88.80.13.160/wiki/Wikileaks, its IP address, and at mirror sites (http://wikileaks.be/, http://wikileaks.de, and http://wikileaks.cx–permits anyone to post documents and other leaked material exposing unethical or illegal corporate and government behavior. A bank employee posted documents on the site purporting to disclose how Julius Baer Bank & Trust assists in money laundering and tax evasion. Last week, in a lawsuit brought by the bank, a federal district court judge in San Francisco ordered the wikileaks.org domain name disabled and locked to prevent its transfer to another domain name registrar. As a New York Times article reports, the judge’s order order “had the effect of locking the front door to the site — a largely ineffectual action that kept back doors to the site, and several copies of it, available to sophisticated Web users who knew where to look . . . The feebleness of the action suggests that the bank, and the judge, did not understand how the domain system works, or how quickly Web communities will move to counter actions they see as hostile to free speech online.”
The judge’s permanent injunction and temporary restraining order, issued without accompanying analysis of the free speech issues, violate the First Amendment. It is hard to fathom why the judge believed these acts of censorship to be legal. The Times articles notes that the U.S. Supreme Court rejected prior restraint of speech in the Pentagon Papers case in 1971, notwithstanding the Nixon administration’s argument that publication threatened our national security. (Every semester presents an opportunity to tell students that, because of the Pentagon Papers case, many people of my generation will forever view government claims that information must be suppressed on grounds of national security with profound skepticism.) Even if Julius Baer Bank & Trust has a legitimate trade secret interest in preventing disclosure–an argument not raised in the Time’s article–then shutting down the website or disabling the domain name would not be appropriate remedies. This is a bad decision that should be overturned on appeal; the Internet has already rendered it moot.
UPDATES: A New York Times editorial on this story and Citizen Media Media Law Project analysis of the legal issues.
