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The Electronic Frontier Foundation has a remarkable account of a clever use of the Digital Millennium Copyright Ac by the Burning Man Organization. That’s the radical artistic celebration and community-gathering that happens every year in Nevada. BMO includes in the terms and conditions to which you agree when you buy a ticket that BMO will own any photos or videos of the events that are used in a way BMO doesn’t like. Once BMO owns the copyright, it can, of course, demand that they be taken down from wherever you’ve posted them. Ingenious! Same technique some doctors are using to prevent patients from posting unflattering reviews — sign over to the doctors the copyright on anything you say about them, and they figure they can force the doctor-review web sites to remove the material, which isn’t yours to post.

The DMCA notice and takedown provisions have created a funny-farm world, in which ordinary people using the Web to express themselves haven’t a prayer against the lawyered-up pros — even the pros of radical artistic organizations.

Hard on the heels of Amazon reaching into the homes of Kindle owners and snatching copies of Orwell’s 1984 off their devices, we have a stunning reminder that Apple’s iPhone is also a tethered device, and nothing goes on it that Mother Apple doesn’t want on it. Application developers have to go through a certification process to get their apps approved for the iPhone, and among the standards applied by the certification team are prohibitions on obscene and pornographic material. On that basis, Apple refused to certify the Ninjawords dictionary until the developer removed words such as “shit” and “fuck” that appear in every standard dictionary of the English language. John Gruber, the author of the linked-to post, points out that some of the banned words appear in the King James bible, and some, such as “ass,” “cock,” and “screw,” have inoffensive meanings which are equally unavailable to the iPhone users of the dictionary. Even after the developers scrubbed every word that had a sexual meaning, Apple insisted that the dictionary carry an “age 17 and over” classification.

No unexpurgated dictionary on the iPhone? No dictionary at all for 16 year olds, lest they find a word with sexual connotations? I’ve been thinking about getting one, but this is too much, no matter how neat they are. We don’t want our consumer electronics suppliers to be the arbiters of public morality, because in 21st century America the least common denominator will be down somewhere near the level of Saudi Arabia.

We make that argument (which we learned from a paper by Larry Lessig and Yochai Benkler) in Chapter 8 of Blown to Bits. The outcome of the Supreme Court case of Fox v. FCC, decided this week, suggests that the line of reasoning we outline has some traction on the Court.

The case, stimulated by Cher’s use of the F-word and Nicole Richie’s use of the S-word, was decided 5-4 in favor of the FCC, which would at first blush make it look like a loss for free-speech libertarians. But the case was decided on narrow administrative grounds; the only question on which the court took a position was whether the FCC had properly promulgated a reasonable regulation (its higher standard prohibiting even fleeting use of expletives at times when children were likely to hear them). The constitutional question of whether that regulation of free speech is in violation of the First Amendment the court let stand.

But the four in the minority seem not to support the restriction of broadcast speech at all. And one of the majority seems inclined in the same direction. That would be Justice Thomas. Although we might have expected him to have the least patience with foul speech on television, he takes the opportunity of writing his own opinion, concurring with the majority in its vote on the administrative question, but making plain that technological changes have shaken the court’s prior reasoning on the constitutional question.

The case has been sent back to the lower court, which will have to take up the constitutional question. Whatever it decides, if the decision is appealed, the Supreme Court may have an opportunity to come down once and for all on the federal government’s right to censor broadcast television.

A few passages from Justice Thomas’s opinion (full opinions here):

even if this Court’s disfavored treatment of broadcasters under the First Amendment could have been justified at the time of Red Lion and Pacifica, dramatic technological advances have eviscerated the factual assumptions underlying those decisions. Broadcast spectrum is significantly less scarce than it was 40 years ago. …

Moreover, traditional broadcast television and radio are no longer the “uniquely pervasive” media forms they once were. For most consumers, traditional broadcast media programming is now bundled with cable or satellite services.… Broadcast and other video programming is also widely available over the Internet. …  And like radio and television broadcasts, Internet access is now often freely available over the airwaves and can be accessed by portable computer, cell phones, and other wireless devices. …

These dramatic changes in factual circumstance swell support a departure from precedent ….

I wrote in the post just below that given a legal pretext to block web sites, as is being done in Korea, other governments would adopt similar strategies to serve their own purposes. This afternoon’s news brings a great example, right from the USA. Tennessee schools are blocking informational sites about gay and lesbian sexuality, apparently on the pretext that they are harmful to minors. The sites of ministries by heterosexual “converts” from homosexuality are not filtered out.

Britain’s chief anti-terrorism officer has resigned after a newspaper printed a photo of him getting out of a car. Huh? Well, you see, he was carrying a secret document, and the text on it was clearly legible. (Some words have been redacted in the photo on the web site — they were not redacted in the original.) A round-up of terrorist suspects had to be accelerated because of the leak.

The government moved to block the Evening Standard from printing the photo, but it was too late — the image was already up on the Internet.

Which raises two interesting questions. As it happens, the photo was taken by a media photographer, but what if it had been taken by a tourist with a high-resolution camera? All the niceties about prior restraint of the press, and media self-policing, would have been irrelevant. I could have taken the photo myself and had it up on this blog within minutes. It doesn’t make sense to have the press laboring under restrictions more severe than those imposed on citizen journalists, does it?

And with high-resolution digital photography now a consumer game, there are lots of embarrassing web sites that could be created. For example, take Latanya Sweeney’s research in which she was able to capture fingerprints just by having people wave their hands in front of a camera (well, several cameras so she could get multiple views). That’s a laboratory exercise at this point, but in a few years, any clown could watch a crowd with a camera and post a web site with lots of images of fingerprints ‚Ķ with facial photos ‚Ķ with names, which could perhaps be recovered from the facial photos by searching the web using face-matching software ‚Ķ.

Chris Soghoian is a smart, relentless privacy advocate and activist. I’ve cited him half a dozen times in this blog (use the search box). He has done a lot of dirty work for print media as well. He’s a grad student at Indiana and a Fellow at the Berkman Center, where I have gotten to know him. He’s a guy you definitely want on your side in an argument. For example, he just took on the recording and movie industries in an FTC hearing about the loss that consumers can suffer if their cloud music or movie supplier goes out of business and takes the bits down with them.

A few weeks ago he pointed out that the decision of the Obama administration to use YouTube had privacy consequences — there was a risk that Google could track who was watching presidential addresses, for example. The first post on this subject was called¬†Why Obama should ditch YouTube, and several others followed. Both the White House and Google were apparently furious, but the White House changed its practices shortly afterwards.

Now CNet, the online news service that sponsored Chris’s blog, has fired him. No explanation, but it’s almost surely because he annoyed some powerful institutions. Here is Chris’s own comments on this, and here is a comment by the Electronic Frontier Foundation.

This is not good. We’ve lost an important voice. Even more, the case raises big worries about the independence of the new media. Chris’s stuff is edgy, and it’s no surprise that his exploits irritate people. But what did CNet think it was getting when it published a blog entitled “Surveillance State”? And on this story at least, the denouncements that followed were denials of things that Chris’s stories never said. I am not aware that he was caught making any mistakes. So please imagine the Washington Post firing Woodward and Bernstein after they started printing embarrassing stuff about the Watergate burglary.

I wish him well. We’ll be hearing from him again, I’m sure. And on the bright side, maybe he’ll finish his PhD now. But I wish he were still up on a visible site making trouble in his informed, funny way.

They’re completely blocking YouTube. No official explanation given, but it’s probably not unrelated to the fact that official sources are accusing the Dalai Lama of producing a phony video allegedly showing Chinese police beating Tibetan independence protesters.

Aside from the obvious moral that the Chinese government feels quite at ease getting tough when it tires of playing games, there is a larger moral for the rest of us: If you want to make what you think will be an important point, don’t worry about over-blocking. We tend, quite properly, to get outraged about the suppression of the isolated instance of offending speech, but in doing so we lose sight of the far more outrageous fact that the entire haystack is shrouded in darkness so that the needle won’t be seen.

Americans can learn a lot about what not to do with the Internet by observing what happens abroad. Unfortunately we too often take exactly the wrong lesson and decide that gee, if people in country X can try to control some social ill that the Internet has facilitated, we’d better try too.

For example, shortly after the Mumbai attacks, there were reports that the terrorists had used Google Earth to plot their path through the city. An Indian court called for a ban on Google Earth itself — to kill the technology, no matter how useful for good, because it had also been used for evil. Not to be outdone by the Indians, a California legislator last week introduced legislation that would require the blurring of Google Earth images. The rationale? To give Californians “the same level of protections that foreign governments extend to their own citizens.” As though we were in a protection competition with every nation of the world, and no other American value, such as freedom of information, was at stake.

An interesting game of cat and mouse has been playing itself out in China. Stirred to resist censorship of the Web, inventive Chinese technophiles have flooded it with cartoons and children’s ditties about grass-mud horses and river crabs. These are parables about censorship — the Chinese words for these creatures resemble, on the one hand, a dirty curse and the official euphemism for “censorship.” For awhile it looked like the perpetrators were untouchable — who could object to a little music video with some alpaca-like creatures romping through the grass? Alas, late last week China laid down the law — no more talk of river crabs on the Internet, or else. Will it work? We shall see. In the very same issue of the New York Times there is a story about a famous Chinese artist who is using the Web with apparent impunity to protest the suppression of information about official malfeasance in response to a terrible earthquake that killed many people.

But that’s China. Back to the world of democracies, for a taste of what may be coming our way. Australia adopted very severe anti-Internet-pornography rules, which are now being implemented. The list of banned sites has now been revealed, and it includes several legal sites, including one for a dental surgeon, one for a legal gambling site, and one for a tour operator. (Follow the link if you want to get to the full list on Wikileaks, but be warned that most of the sites in the list are pretty sketchy places.) A pretty furious reaction seems to be afoot, but the mistakes could easily have been predicted. How many false positives, that is, legal information mistakenly banned from the nation, are the Australians willing to tolerate in order to shut out the material that is officially illegal? Who is deciding on which sites are illegal, anyway (apparently these decisions are being made without any process at all in Australia). And how will American lawmakers respond when such measures are, as they have been and inevitably will be again, proposed in order to protect Americans?

Added 3/22: I should have included a reference to the micro-storm over Britney Spears’ new song “If You Seek Amy,” as in “all the boys and all the girls are begging to if you seek Amy,” pretty much the same trick as the Chinese are doing with the mud horses and river crabs. The Parents Television Council is outraged and claims that radio stations are violating the laws about broadcast indecency if they play the song before 10pm. We tell the tale of broadcast indecency in Chapter 8 — one of these days a case like this is going to work its way up the federal court system, and we’ll see if our judicial system follows the model set by Chinese authorities.

A few months ago, a physician who attended one of my talks started a correspondence with me about sites in which patients critique doctors. Anonymously, sometimes ungently. And sometimes by making statements that are false and injurious to the doctor’s reputation. That’s the definition of libel. What, I was asked, can be done?

There are, of course, many sites where anonymous garbage gets posted — think rottenneighbor.com or dontdatehimgirl.com. But a site such as¬†RateMDs.com¬†– the libel is discrediting a laboriously earned professional credential, in a way that could cost physicians their livelihood.

This is a classic case of the problems of anonymous speech. It should generally not be believed, unless there is some evident reason to think that the speakers could be imprisoned if their identities were known. Otherwise, with no skin in the game, why wouldn’t the speakers identify themselves, except to shield themselves from libel charges? It would seem that their confidence in their speech is very low if they hide themselves.

And yet anonymity has always been protected. Whistleblowers may have all kinds of reasons to want to get the truth out without spending their lives defending what they say. Ben Franklin wrote pseudonymously, even when he was just writing his almanac and had no political ax to grind. And so on. Courts generally are protective of online anonymous speech, and won’t force web site operators to reveal the names of their posters. Laws banning anonymity — though they do get proposed every now and then — would almost certainly be unconstitutional.

Now comes a free-market solution. Medical Justice provides waiver forms that doctors can ask their patients to sign. Sign the form and you agree not to malign the doctor on any web sites. Don’t sign the form and you can perhaps expect to be told that you might prefer to see another doctor. At least the doctor will be armed with a signed release from you if he or she tries to get a site to remove something unkind you’ve said.

Now this is a free-market solution, only if there is real competition in the doctor business. In a rural town with only one doctor, there may not be. In that case, the choice would be waiving your right to criticize the doctor, no matter how incompetent or unmannerly he or she proved to be, and forgoing treatment.

I tend to go with those, like the patient advocate quoted in this story, who find this practice noxious. Though you shouldn’t believe anonymous speech, this way of handling the problem blocks speech indiscriminately, the true along with the false and libelous. One can imagine all kinds of professionals asking clients to waive their rights to speak up. Even though only anonymous speech is at stake, the price seems too high.

But the doctors who use these forms are within their legal rights. So how to fight back? With more speech. RateMDs.com is planning to create a “Wall of Shame,” listing doctors who make their patients sign waivers. Whatever you think of the criticism, or libel, of doctors on that site, that’s a fine approach to fight the doctors’ attempt to gag their patients.