More than a year ago, when the Supreme Court upheld the FCC’s authority to fineFox Television Stations for “fleeting expletives” uttered by Bono and others, we noted that the court made only a technical ruling and some of the opinions were sympathetic to Fox’s position on the underlying and more important First Amendment question:  was the rule the FCC applied too vague, capricious, and uncertain so that it chilled speech? Technology has changed, we noted, and perhaps it is time for the rules to change too, since they were always premised on an argument that television and radio were exceptional technologies, by comparison with books, for example.

The case went back to the lower court, which took up the constitutional question, and ruled against the FCC. (New York Times story.) The judge in the case made a number of correct observations–why should the standards be different for cable TV than for broadcast TV, for example. She did not rule out the possibility of the FCC adopting rules that would be constitutional, and noted that she was bound by the Supreme Court’s 1978 Pacifica decision which made that FCC authority clear. But for the moment, the networks can relax a bit about prosecution for the occasional cuss out of the blue — for example, the one in a discussion of Middle East policy that was spoken by a US President to a British Prime Minister, and which the broadcast networks had to bleep out.

It will be interesting to see what the government does now. It could appeal, but the case seems like a loser, and an appeal all the way to the Supreme Court could backfire, since Justice Thomas signaled that there may well be five votes for overturning Pacifica and costing the government all of its regulatory authority over televised speech.

In other speech control news:

A judge in Pennsylvania signed an order, drafted by a defense attorney, requiring newspapers to expunge their archives of all mention of the defendants’ arrest. The defense attorney actually has part of the logic right: “What’s the sense in having your record expunged if anyone can Google you and it comes up?” He’s right that expungement orders have been blown to bits. He’s just wrong that the way to fix that problem is retroactive censorship of the printed word. It’s a problem that can’t really be fixed, in the U.S. anyway. What was this judge thinking?

Also, a couple of notes on anonymity. I was reading Richard Clarke’s book Cyber War, which makes a compelling case for a more controlled version of the Internet by riding roughshod over civil liberties concerns. Having described the Internet as basically a hippie invention (“the Internet as we know it today is deeply imbued with the sensibilities and campus politics of [the 1960s]“), Clarke scornfully distances himself from any respect for anonymous speech, or reading.

The “open Internet” people believe that if you wish to read The Communist Manifesto, or research treatments for venereal disease, or document China’s human rights violations, or watch porn online, your access to that information will not be free if anyone knows that you are looking at it.

So much not just for Vint Cerf, but for the professional and legal standards governing libraries in most states in the U.S. He comes off sounding just like the Chinese government in its latest “explanation” about how it will control the Internet. “We will make the Internet real name system a reality as soon as possible,” a Chinese official said recently, referring to a requirement that Chinese will in the future have to use their actual names in all Internet communications, no anonymous postings or emails allowed. Just what Clarke would like to see happen here.

A fascinating case has been before the US Supreme Court this spring. Opponents of a gay civil union statute in Washington state petitioned to place its repeal on the ballot so voters could have the last word. Backers of the law asked the Secretary of State to declare the names of the petitioners a public record and post the names on the Web. The petitioners sued the state to prevent publication, saying they feared harassment.

It’s a wonderful puzzle. Both sides claim their free speech rights are at stake: the one side holding that the names are really part of the legislative process for which transparency is essential; and the other side arguing that their capacity to speak freely requires a level of anonymity. It’s an Internet-created issue, because although petitions have been around for centuries, until now it would have been impossible to publish them quickly enough to influence an election, and to sort and analyze them effectively enough to be a serious privacy threat.

The court’s decision is at once one-sided and inconclusive. By an 8-1 vote the court decided the immediate question before it: Petitions are, generally speaking, public. But the near-unanimity is only superficial, and may not even settle the question of the case at hand. Most, but not all, of the 8 allowed that there might be circumstances—some credible risk of harm, for example—under which petitioners would have a right to keep their names from being published. So the case goes back to a lower court, but may rise back up again.

What is most interesting is that the views of the justices cut obliquely across the usual liberal-conservative lines. In fact, the justice who is the most dismissive of any privacy right, and the sole justice who would have made privacy the norm, not the exception, are the two most conservative justices, Scalia and Thomas, who rarely split their votes on anything. Scalia called for “civic courage, without which democracy is doomed,” and added that he does “not look forward to a society which … exercises the direct democracy of initiative and referendum hidden from public scrutiny and protected from the accountability of criticism.” Thomas held with equal conviction that routinely publishing the names of petition signers would unacceptably chill free speech through a loss of “associational right to privacy.”

A case of the Internet confusing the traditional alignments on free speech issues.

Democracies are remarkably ready to adopt the censorship technologies of nations they claim to loathe. Our example du jour is the government of South Africa, which proposes to ban Internet pornography. All of it — not just bad stuff like child pornography.

And why not, say the social arbiters within the government? A deputy Home Minister says, “Cars are already provided with brakes and seatbelts… There is no reason why the internet should be provided without the necessary restrictive mechanisms built into it.”

There are a few problems with this idea, to say the least. First is that it won’t work. Any filter will fail to detect encrypted images — though of course you could outlaw encryption. Problem is, you probably want your banking transactions encrypted.

So any porn detector is going to have lots of false negatives.

But there are the false positives too. This is the old problem of figuring out what the government censors will consider pornographic. Perhaps South Africa has figured out how to define it, but I doubt it. Will anatomical atlases be banned? Breastfeeding guides? Sex manuals, for that matter? What about The Ecstasy of St Teresa? Somebody has to decide, and where there is legal liability for guessing wrong, a great deal of worthwhile material will be redacted. Self-censorship works rather well, actually.

Massachusetts has started to get a bit more insistent about collecting MA sales taxes on goods purchased out of state–including over the Internet. This year’s return invited me either to list the actual amount paid and pay the Massachusetts rate on the total, or to pay a “safe harbor” tax on my income. Pay the safe harbor rate and I am exempt from harassment for my out of state purchases, even if I get audited and it turns out I would have owed the state much more based on my actual purchases.

I found this annoying. But actually it seems to me correct. I don’t imagine people were paying those taxes until the safe harbor was introduced, and if I don’t like the safe harbor, I can keep track of all my Amazon purchases and whatnot and pay the 6.25% on those. I can object to the whole notion that stuff I buy out of state and bring or have shipped in state should be taxed, but until somebody changes the rules, that is the way the rules read.

Now the state of North Carolina has done Massachusetts one better and has handed its comparable tax collection problem to Big Brother. The state has demanded that Amazon turn over to its tax authorities detailed, itemized records of everything shipped to anybody in the state. (Amazon has no business address in North Carolina. Only customers are there.)

That’s a lot of data, but of course that’s not the problem. Amazon has it, not just for billing purposes but so it can pitch you different suggestions on rainy Tuesday nights if it notices that you particularly like ordering steamy romances on evenings like that. The granularity of the data is extremely fine, and the state wants it all. Amazon provided some anonymized information — not sure I am happy even with that, given how easily apparently anonymized data can be re-identified — but it doesn’t matter, because the state was not content with that. It wants names and addresses.

Amazon is resisting, thank goodness, on First Amendment grounds–citing individuals’ right to read anonymously. But aren’t there Fourth Amendment issues, too? Given constitutional guarantees of security against unreasonable searches, what possible justification could the government have for demanding to know the shoppings lists of ordinary citizens, not under suspicion of anything?

Facts can’t be copyrighted. So if I know something is true, in general I can publish it, no matter how I learned it. But there are limits. Publishing “hot news” that was gathered by professional journalists is freeloading on the labor of others, and can be illegal as a matter of unfair competition. Sam Bayard has an excellent run-down on the legal history of “hot news misappropriation,” which he describes as a doctrine that was in decline only a few years ago, scorned by jurists and nearly useless in practice. But the Internet has given the concept new life. News organizations, faced with bloggers’ newfound ability to skim the cream off a variety of sources and publish the gist almost instantly, are being sued by the original news gatherers. And, in at least one recent case, winning on the basis of hot news misappropriation.

The case involves a site called Fly on the Wall, which was sued by Barclays Capital, Inc. Fly’s creator, Ron Etergino, claims he does not simply steal the news coming passed on to him by Barclay’s clients. Instead,

According to Etergino, he checks first to see what Recommendations have been reported on Bloomberg Market News.  Then he checks Dow Jones, Thomson Reuters, and Fly’s competitors such as TTN, StreetAcount.com, and Briefing.com.  Next, he visits chat rooms to which he has been invited to participate by the moderator. . . . Etergino also receives “blast IMs” through the Bloomberg, Thomson Reuters, or IMTrader messaging services that may go to dozens or hundreds of individuals.  Finally, Etergino exchanges IMs, emails, and more rarely telephone calls with individual traders at hedge funds, money managers, and other contacts on Wall Street.

As Sam says, that “looks a whole lot like good-old fashioned journalism.  And it largely relies on information that is publicly available through mainstream and Internet media reports, IM blasts, and what appear to be open chat rooms.”

A federal judge has nonetheless required Fly to delay publication for long enough to give clients of Barclays and the other market researchers a head start. And what could be wrong with that?

What could be wrong with that is that it is another way for owners of knowledge, already well protected by copyright laws, to prevent others from publishing the truth. Barclays would have used the simple expedient of a DMCA takedown against Fly if it had been available, but the facts Fly reports can’t be copyrighted. As Bayard says, the hot news misappropriation doctrine “creates a pseudo property right in facts that copyright law says are in the public domain.”

And the problem with that is Google News and its kin, “news aggregator” sites that link to a variety of primary news sites. These have been contentious as newspapers continue to decline, since the ad revenue on the aggregator sites goes to the aggregator, not the news organizations themselves. And when you click on a link at Google News and get directed to the St Louis Post-Dispatch or some other newspaper site, you are unlikely to pay much attention to the ads there, much less to wander into other parts of the newspaper.

All of which argues for sympathy with the beleaguered organizations that create, in the words of Alex Jones’s stirring book Losing the News, “the iron core” of the news, the hard facts that are costly to dig out and for which the news organizations need compensation. But using the hot news misappropriation against the aggregators raises serious First Amendment issues, since as Bayard quotes a relevant precedent, “if a newspaper lawfully obtains truthful information about a matter of public significance then state officials may not constitutionally punish publication of the information, absent a need to further a state interest of the highest order.”

I don’t know exactly where the balance should be struck, but every time I see a plaintiff win a reasonable-sounding judgment against a publisher by means of a creative application of a legal principle that was meant to cover a different situation, I cringe to think how that principle will be used in the future to curtail the free flow of knowledge.

Finally closing the loop on its refusal to self-censor its search results in mainland China, Google has flipped the switch. The google.cn site is now being served, uncensored, from Hong Kong. In principle, that is, they are providing uncensored search inside China, since Hong Kong is part of China. Google has also put up a page, which it updates every day, indicating which Google services are available, blocked, or partially blocked from the mainland.

The Chinese government has responded with anger and contempt, claiming (for reasons that are a bit unclear to me) a double-cross on Google’s part.

See Rebecca MacKinnon’s blog for the most cogent summary of the present state of affairs and the choices now available to the Chinese government. She argues, correctly I think, that the government’s bluster is only going to make the Chinese people more aware of what they are missing, causing many more to learn about circumvention tools. She quotes a tweet coming out of China summarizing the irony beautifully: “One Google, On World; One China, No Google.”

Tamar Lewin of the New York Times reports that some state legislatures are showing some common sense about sexting. They are recognizing that it doesn’t make a hell of a lot of sense to prosecute a teenager on child pornography charges for snapping a cell phone photo of herself and sending it to her boyfriend. If the perpetrator is the same as the victim, it’s like prosecuting a failed suicide as attempted murder.

Legislatures are so often happy to have old laws applied to new technology as long as they expand the scope of criminality. Perhaps in these cases they recognize that the kids doing the sexting could be their own children — as many as 20% of teens may have done something similar. Nice to see the pattern reversed, and for the problem to be treated as one of education and parental responsibility. The criminal justice system is not the vehicle for fixing whatever is going wrong here.

Also on the child pornography front, Japan, which apparently does not take real child pornography very seriously, is cracking down on Manga (cartoon) child pornography. A weird inversion of values. The Economist reports that an American court recently convicted someone for possessing Manga child pornography, which I should have thought was hard to do in the US, given the emphasis on harm to the victim. Apparently the grounds are obscenity, which is still illegal, though rarely prosecuted, in the US.

I have been thinking for awhile about the myriad ways in which we could wind up knowing less, not more, as a result of the digital explosion. So this will be the first in a series. Feel free to post or email others you’d like to suggest.

The editor of the European Journal of International Law is going to stand trial in criminal court in France, because a book review on a web site associated with the journal displeased the author of the book. The book’s author demanded that the review be taken down; the editor wrote a thoughtful response, inviting the reviewer to alter his review if he wished, and inviting the author to post a comment of her own if she wished. (These are book-review innovations that could not have happened in the pre-Internet world.) The reviewer chose not to alter his review, and instead of posting a response, the author sued the editor, personally, for libel. Apparently, under French law, this ball, once rolling, can end only in the courthouse. The editor, not even a Frenchman I think, has to show in Paris in June to defend himself.

This is madness. Without pretending to any expertise about French law, it seems that the European prioritization of personal dignity over free speech as a human right here has crazy, and more importantly censorious, consequences. Who will dare to write a critical book review on a blog if it means the expense and risk of defending oneself in France?

The editor’s telling of the tale is here. The review itself is here.

Hard to know where this case could end. Even if the editor spends a lot of money, gets a good lawyer, goes to France, and wins his case, who, in the future, will dare either write or publish a critical review of anything by a French author? What sort of system of liberté is this? Is this really what the French fought their revolution to protect?

The editor invites help of two kinds. First, and this applies particularly to scholars who are themselves editors,

You may send an indication of indignation/support by email attachment to the following email address EJIL.academicfreedom@Gmail.com Kindly write, if possible, on a letterhead indicating your affiliation and attach such letters to the email. Such letters may be printed and presented eventually to the Court.

The editor asks that letters not be sent to the book author. And second, the editor asks,

it will be helpful if you can send [to the same address] scanned or digital copies of book reviews (make sure to include a precise bibliographical reference) which are as critical or more so than the book review [linked above].

If you have links to reviews that meet that condition, let me know and I’d be glad to pass them along.

In a move that is remarkably aggressive even by the standards of totalitarian regimes, Iran has announced that Gmail will be banned and that a government-run email service will take its place. The Wall Street Journal explains,

An Iranian official said the move was meant to boost local development of Internet technology and to build trust between people and the government.

I get it. People will trust the government more if they know the government is watching all their email and there is nothing they can do about it. Wait, no, I don’t get it. Could you explain that again?

I have gotten two unsolicited emails over the past year from Iran. One was from a Gmail address, enclosing a manuscript about teaching for me to read. When I responded that we all think about the people of Iran and their struggles, the unguarded reply was “That is why I chose green for the cover of my book.” I hope that did not get him into trouble. Another, from a Yahoo mail address, asked for my help in locating a relative. Apparently the person writing thought the relative had gone to Harvard. I could find no evidence of that but I did find the fellow’s Facebook page, for which my correspondent was very grateful

These experiences left me wondering how thorough the surveillance is, and today’s announcement leaves me wondering if people will put up with it being heightened.

I’ve now both listened to and read Secretary of State Hilary Clinton’s speech on Internet freedom. (That’s a link to the State Dept. home page, where it is still featured. I imagine it will move off shortly.)

It’s a good speech, I think. At least it was good enough to annoy the Chinese. A columnist for the People’s Daily snorted that Google had been reduced to an “ideological tool” of the US government and noted, correctly, that Google is losing the competition with the native Chinese search engine, Baidu. (Note: You can compare for yourself the search results returned by the US version of Google, the Chinese version of Google, and Baidu. But be aware that the link for Chinese Google takes you to servers inside the US, while the link for Baidu takes you, I think, to China. The result is that you may not see google.cn, the Chinese version, as the Chinese experience it. When I tried Googling “Falun Gong” inside China, I lost the Internet connection to my hotel room.)

The China Daily simply denies that Clinton is telling the truth. [A Foreign Ministry spokesman] “said the speech indicated China restricts internet freedom. ‘It is a far cry from the truth,’ he said.” And the People’s Daily accuses the US of hypocrisy. “It is common practice for countries, including the United States, to take necessary measures to administer the Internet according to their own laws and regulations. The Internet is also restricted in the United States when it comes to information concerning terrorism, porn, racial discrimination and other threats to society.” The paper goes on to cite Steve Ballmer as one of the good guys. “Noting that most countries exert some sort of control over information, Microsoft Chief Executive Steve Ballmer said Friday his company must comply with the laws and customs of any country where it does business.”

In fact, in her speech, Clinton, after stirring invocations of the US First Amendment and the Universal Declaration of Human Rights, conceded the point about Internet freedom having its limits. Here is the crucial paragraph:

Now, all societies recognize that free expression has its limits. We do not tolerate those who incite others to violence, such as the agents of al-Qaida who are, at this moment, using the internet to promote the mass murder of innocent people across the world. And hate speech that targets individuals on the basis of their race, religion, ethnicity, gender, or sexual orientation is reprehensible. It is an unfortunate fact that these issues are both growing challenges that the international community must confront together. And we must also grapple with the issue of anonymous speech. Those who use the internet to recruit terrorists or distribute stolen intellectual property cannot divorce their online actions from their real world identities. But these challenges must not become an excuse for governments to systematically violate the rights and privacy of those who use the internet for peaceful political purposes.

Now that passage contains a remarkable juxtaposition. A grand buildup.  A concession that there are limits to expressive freedom. A citation of the example of mass terrorism. OK, I’m listening. The next examples are the usual nondiscrimination categories, presented as hate-speech categories. Now I am getting worried; what counts as hate speech is so often in the ears of the listener. To be sure, it is easy to imagine a Tibetan rant about Chinese oppression that the Chinese could reasonably tag as ethnic hate speech. This is beginning to sound like a list of exceptions to freedom big enough to put almost anyone in shackles. Then there is the “issue” of anonymous speech. Secretary Clinton has nothing good to say about it, and then in a flat declaration puts Osama Bin Laden in the same box with millions of American teenagers—in the box of “those use the internet to recruit terrorists or distribute stolen intellectual property.” At this point I think the speech loses its operative edge. It leads inevitably to the conclusion that the speech control tools aren’t the problem—they are necessary in fact—only the way they are used.

So I finished the speech feeling good; it’s certainly better than a speech that emphasized cooperation at all costs, and that might have been expected. On the other hand it leaves me unconvinced that the administration actually has a consistent point of view on cyber-freedom.

One ironic footnote. The streaming video comes via a service called Brightcove. If you click on the “Information” icon on the video window while the speech is playing, you get Brightcove’s who-knew? privacy policy, which explains that “By using the Site, you agree to the terms and conditions of this Privacy Policy. If you do not agree to the terms and conditions of this Privacy Policy, please do not use the Site.” Much of the privacy policy does not apply to visits to the state.gov site, which requires no login and hence generates no personal information. But of course viewing the Internet Freedom video does send Brightcove your IP address, which Brightcove treats as “Non-Personal Information.” And, it says, “we reserve the right to share Non-Personal Information with affiliates and other third parties, for any purpose.” So Brightcove could, for example, sell Harvard University the information that I watched the Internet Freedom video via the wired jack in my Harvard office. Freedom does have its limits, but I might have hoped they fell a bit farther out than that.