In the past there has been a huge disconnect between an average person on the street and their source of information. Once that gap began to close up when people began producing information on the internet, everyone was immediately cautioned not to believe anything they read unless it was said or written by a verifiable source (read: professionals). How could a random, unnamed person compete with Dr. X, who received their PhD after Y number of years of studying and doing research at University of Y?
In November of 2000, NASA set out to see if this divide was appropriate. Clickworkers was a project that had the public identify and classify the age of craters on Mars images from Viking Orbiter. These images have already been analyzed by the NASA scientists but decided to run this small experiment to test two things: 1) can the public handle this level of science and, 2) does the public want to get involved? Their findings would revolutionize the users role on the internet as just a recipient of knowledge. After just six months of being launched with over 85,000 visitors, NASA analyzed the public’s data and concluded that the task performed by Clickworkers “is virually indistinguishable from the inputs of a geologist with years of experience in identifying Mars craters” (Benkler).
Wait, wait, wait…did NASA just prove that internet users aren’t just out there looking to troll and that the internet is more than just a medium for porn?!! Sure, the average user is clearly not smarter than the space geologists at NASA but clearly there is knowledge in numbers. Internet users, when provided with a platform and easy-to-use tools, are a force to be reckoned with. This small project has now set the wheel in motion for one of the most controversial yet most used tool of our generation.
The Rise of Wikipedia
Jimmy Wales’s lifelong dream was to create an online encyclopedia. He initially set out to make Nupedia the old-fashioned way:
In attempt to lessen the burden on the experts, Wales launched a Nupedia wiki which was opened to the public. Just like in NASA’s Clickworker, what happened next completely shocked everyone involved. Within just a few days of its launch, the Nupedia wiki, or Wikipedia as it was dubbed, outgrew Nupedia. Wales, though initially worried about the validity of an encyclopedia created by the people, he saw the potential and ran with it. And rightfully so…
The Five Pillars of Wikipedia
In order for any egalitarian community to work effectively, there has to be some common grounds. Though the members of the Wikipedia community are essentially strangers to one another, it still functions because everyone agrees to the terms set out by the Five Pillars of Wikipedia:
1. Wikipedia is an online encyclopedia
2. Wikipedia is written from a neutral point of view
3. Wikipedia is free content that anyone can edit, use, modify, and distribute
4. Editors should interact with each other in a respectful and civil manner
5. Wikipedia does not have firm rules
The first three principles aim to ensure that users do not stray from the original intent of allowing Wikipedia to be a comparable of information as professionally created encyclopedias like Britannica while the fourth is there to make sure that these strangers do not sink to chaos and the extreme cruelty that normally results from internet anonymity. The last principle is a beautiful reminder that although there is an original creator of Wikipedia, this is essentially YOUR project as much as the next editor. There are no rules because the people who are editing have good intention. This is information for the people, by the people.
Wikipedia has changed the way in which people interact with information. For better or for worst, the general public has subconsciously processed these principles and judge what they read based on the expectation one now has of wikipedia editors to not allow for vandalism and faulty information to stay up for long. There is now a standard that one must adhere to when writing and editing Wikipedia articles. If this standard is ignored, Wikipedia users would catch the error and would self-correct within minutes, hours maximum. The general public no longer takes in information as written and demand that at the very least, this standard of credibility and accuracy to be attempted.
Is Academia a Thing of the Past?
Before giving up hopes and dreams of entering this exclusive ranking, think of the importance of having true professional. True millions of users contributing small amounts of time is cool for the layman, we still need the professionals to provide the primary and secondary sources that are necessary for the accuracy of Wikipedia. Projects like Wikipedia and NASA’s Clickworker still need people who know what they are doing behind the scenes. Rather than putting professionals in opposition of users, we could start of a great collaboration — free and motivated “interns” alongside professionals working together to make the world a more knowledgeable place. In doing so, the spread of knowledge is no longer a one-way street controlled by the elite few.
But regardless of this beautiful image, these fear of taking over potential doom of academia and the professional markets that depended on being information privately owned has created much criticism of this open-sourced encyclopedia. As Robert Henry, a former editor of Encyclopedia Britannica, claims “Wikipedia is unreliable because it is not professionally produced.” Professors are also equally against the growing use of Wikipedia because of the threat it poses:
Many have spread this notion that since it is user-created that Wikipedia absolutely cannot be accurate. NASA’s Clickworker project showed, as well as the self-correcting system held together by the Five Pillars on Wikipedia, have proven after much analysis, user produced does not mean inaccurate and “shallow source of information.” We have yet to move into the era in which Wikipedia is an acceptable source in academic papers but I have a feeling we are not far from it now that it has become much better at regulating and expanding itself.
The Dangers of Wikipedia?
Dangers of the distribution of knowledge for the people by the people? You must be crazy!!! As wonderful as it is that we now can instantly look up information that is fairly accurate, have we created a generation of people unable to retain information? Are we now so dependent on Wikipedia that we no longer feel the need to commit anything to memory? As this XKCD comic suggest, has it all gotten out of hand? It is still too soon to even begin to look at the effect of Wikipedia on society but these are definitely dangerous scenarios that are not too far out of the question. A little support is good but complete dependency on any one source of information can lead to disastrous outcomes.
Ahh Wikipedia. It’s hard to imagine life without immediate access to understandable answers to the world’s toughest questions. Why is the sky blue? Why is grass green? What is the meaning of life?
(Warning: gratuitous Wikipedia links continue below)
Many of us depend on Wikipedia for all aspects of work and play but, admittedly, it has its flaws. Still, Wikipedia manages to be one of the most visited sites year after year. What keeps us coming back? Is it an addiction to an ever-growing content base and cordial user community? Perhaps a primal urge to voraciously consume and produce knowledge?
Are the problems of Wikipedia solvable? Many have been greatly mitigated but have yet to dissapear. As you continue your Wikipedia editing/using career, here are some issues to consider as the network grows.
10. Abuse and Vandalism in Articles
This slots in at 10 as the community controls and norms in place continue to make this less of an issue. Still, if Stephen Colbert believes in change on Wikipedia, it might just happen. Edit wars are still fairly common and can get nasty. While most of the time, users do seem to be acting in good faith, it isn’t always the case.
As the user base continues to increase and people and machines get better at monitoring and fixing abuse, the prospects continue to brighten!
Just because content isn’t centrally created and distributed, doesn’t mean it can’t be blocked or censored. And if anyone can edit Wikipedia, the government and private enterprise can edit Wikipedia. While censorship across different types of content and distribution methods is certainly a concern, the right to access factual information is becoming a more pervasive human right. Because of the nature of Wikipedia’s content, any obscenity or other censorship argument is weakened. Expect Wikipedia to remain at the frontier of free information.
I know. I know. It’s better this way – presenting facts and the facts of others’ viewpoints but I wish just once we could shake things up and have an article that reads like the YDN editorial page. You can be sure that Paul D. Keane. M. Div ’80. M.A., M.Ed. PS would be very vocal on the discussion page and trolls would abound.
The Neutrality standard, like Abuse and Vandalism above, has continued to be upheld more effectively through norms, moderators, and technological infrastructure. This is no easy task, especially in the case of articles involving current events or controversial issues or both. Like Abuse, this issue is unlikely to be wiped out completely, but its adverse effects are generally felt minimally by Wikipedia users.
7. Time Waster
Ok, maybe it isn’t as bad as StumbleUpon or Google Reader, but Wikipedia can really eat up time. This is true for both editing and reading; all those in-text links are just so appealing. On the bright side, you can’t help but feel like you’re learning something. It just isn’t always clear exactly what you’re learning.
6. Not In Paperback
Call me old fashioned, but nothing gets me up in the morning like the smell of leather bound books and rich mahogany. In spite of the efforts of a brave few, it seems unlikely that Wikipedia will be in paperback any time soon. Aside from the obvious factor of not looking like a stud/studette when you pull the Aa-Ac book of encyclopedia brittanica of your knapsack, with Wikipedia you can’t easily see what comes alphabetically before Aardvark! Fortunately, there’s still the “open the book to a random page and read game” for the 21st century. The benefits of having everything dynamic and on the interwebs is that it can better keep up with our rapidly developing knowledge base. Also, it’s free and available to way more people. Plus it’s packed with way more information (from way more sources). Oh my! I’ll take that tradeoff any day.
Have you ever been devastated to discover a mere stub article on Wikipedia when beginning to write a paper? Or worse, “The Page Does Not Exist” Search Result of Doom. In spite of the concerted efforts of many, the impressive information trove of Wikipedia remains incomplete. As our information gathering continue to outpace our information synthesis, this issue is unlikely to end in the near future. However, that makes the fight even more worthwhile. Similarly, arcane topics in Wikipedia can often be overlooked due to lack of interest or lack of people knowledgeable on the subject. This can create articles strongly influenced (and biased) by certain groups or no article at all. I mean, who uses 29Si NMR these days anyways?
4. Innacurate and Untrustworthy
I had to include this as these charges are often levelled at Wikipedia. Fortunately, there is much evidence to suggest high accuracy (roughly comparable to the oft-praised encyclopedia brittanica in science matters). Of course, certain newer articles or articles with less well-known topics will be of lower quality but they likely aren’t even included in encyclopedia brittanica. Should you need more convincing, I recommend the people of yahoo answers.
Have you ever heard the expression “you get what you pay for”? Wikipedia is free so might it not be very good? There’s no advertising and no fee-per-use/subscription fee (Spotify?). Too good to be true? There must be a catch you say? I got it! They want you to contribute money and/or time (voluntarily). That doesn’t sound too bad actually (at least to me). Well done, Jimmy, Well done. But still, be a conscientious consumer of the information you get on Wikipedia. Not everything on the internet is true.
There’s definitely something reassuring about the same format, color scheme, and everything on Wikipedia, but sometimes you just want something new and eyecatching. Sure, there are skins and other websites you could be browsing, but why not be exciting like facebook and change your features and layout every two days? It seems to be working for them. I guess for now we’ll have to live with the search box on wikipedia boringly and predictably sitting in the upper right hand corner of the screen and take the changes we can get.
1. Research Papers
What’s the first step of starting an essay? If you answered D) search the topic on Wikipedia, you fall into an ever-growing category of people/college students. Somehow, it still isn’t okay to cite Wikipedia. I guess we should go and check the information in the original source, but then does that count as original research? Moral, legal and ethical dilemmas are everywhere! Not to mention, why should I write a brand-new reasearch essay on Abraham Lincoln when there’s already a good one here? Wouldn’t it be better if I improved that one or used that as a starting point?
We’re unlikely to see citing Wikipedia as your main source of information become academically acceptable any time soon. That doesn’t mean it isn’t helpful – it sets up an outline for you to better understand the topic. In conclusion,it looks like EasyBib will be around for at least a few more years and college students everywhere will be forced to research beyond Wikipedia.
Wikipedia and You
In spite of all these grievances, don’t forget one thing! Wikipedia is, in fact, the best thing ever. It makes lives better, easier, and more interesting and demonstrates the immense power of a norm enforced collaborative network of people with common values. So go have fun and make the world a better place!
Last June, Alex Kozinski (chief judge of the 9th district court) wrotethis blog piece lamenting the death of the Fourth Amendment. It was critical, yes. A public warning? Surely. That said, the Fourth Amendment is not actually dead, yet. But true to Kozinski’s argument, it is dying – a long and drawn out death by spoon technology.
As any fifth grader may recite, the fourth amendment assures that: “the right of the people […] against unreasonable searches and seizures, shall not be violated; and no Warrants shall issue but upon probable cause […]”. So where does technology come into the picture? Technology has transformed the practicality and scope of “search and seizure” for law enforcement, all the while weakening the citizenry’s defense of what is “unreasonable”. This one-two punch has effectively overhauled much of what Americans used to believe about privacy. We will first look at some new ways technology is helping the government “search”, as well as (more interestingly) the new ways technology is undermining one’s defense for a “reasonable expectation of privacy”. Then I offer some defensive technology to help you fight fire with fire!
Perhaps the most infamous new weapon in the government’s privacy arsenal are the backscatter x-ray full-body-scanners. These machines, which have been deployed to several airports around the US, produce high quality “naked” photos of a subject. Although the face and genitals are always blurred, advocacy groups like the ACLU have unsurprisingly risen up against this new practice as unreasonable and invasive. In a testament to modern citizen complacency, a Washington Post article from last November reported that only 32% of surveyed travelers verbally opposed the scanners, and even fewer went so far as to ‘opt-out’. To be fair, I myself I consented to such a scan without much of a second thought last winter break.
For further example, in 2007, the Bush Administration took the first steps towards allowing satellite surveillance to be used domestically. This military technology, with its ability to see high resolution through clouds and even buildings , is perhaps even more invasive than the “virtual strip searches” described above. The decision was reversed, in 2009, when strong protest by the ACLU resulted in the closure of the program. Nevertheless, the technology exists and history shows that the government is all to willing to use it.
As a final example, consider GPS tracking. Previously the stuff of Bond and Batman, ever since 2010 these trackers can be applied to private vehicles on private property – often without a warrant. It is worth noting that this ruling only holds precedent in the 9th (which is Kozinski’s own) circuit. This issue burst into the public spotlight in October of last year, when a twenty year old Arab-American student in California discovered a tracker on his car. Yasir Afifi took photos of the device and posted to the popular Reddit social news site where his post rose quickly to the front page. According to Wired magazine, the FBI followed up with Yasir Afifi within days to recover their “highly expensive” piece of equipment, but they offered little explanation.
Taken as a sample, these three technologies work well to highlight the growing power of big brother’s all-seeing eye. That said, what is ultimately more dangerous is technology’s ability to render us complacent and legally defenseless – which is really the core of Kozinski’s article.
It comes down to the Third Party Rule in fourth amendment considerations. That is, we only have a reasonable expectation to privacy over things we haven’t revealed to other people or in public. Well that doesn’t seem to be a problem; I mean, we’re not walking around broadcasting our lives to the public are we? SPOILER ALERT: yes, yes we are. Far beyond the easy examples of posting photos to Facebook, Twitter, or Instagram (bieber shout out!), consumers are sharing their personal information and implicitly voiding their rights to privacy every day through mundane, innocuous tasks.
Take for example, supermarket loyalty programs – the enemy of choice for Kozinski’s article. They seem innocent enough: sign a quick form, and get 40c off that planters unsalted six pack of heart-healthy peanuts. I speak from experience, it’s an easy sell. The problem, constitutionally speaking, is that I have now granted access of my purchase history to a third party, I can no longer reasonably expect that to be private. The government knows this, and uses it. And loyalty programs are just the beginning. Fast-trac cards for toll-booths keep electronic record of your whereabouts. Amazon, Zappos, and GoodGuyGuns.com have databases with your order histories. Heck, Google Latitude and the new iOS 5 let you ‘share’ your realtime, granular location 24 hours a day! As we give up more and more control of our information for increasing convenience of service, we further limit our own “reasonable expectation of privacy.”
Many of these services have limited contracts, detailing certain controls over who can access your information and under what circumstances. But the majority of these contracts are unapproachable to the average consumer, and yet to be critically examined in court. At the end of the day, you are still sharing private information with a third party entity. Benjamin Franklin once famously said that “Those who would give up essential liberty, to purchase a little temporary safety, deserve neither liberty nor safety.” I wonder what he would have to say about giving up liberty for not security, but convenience, and the chance to get 15% off your next purchase of Keebler Chips Deluxe.
Now, as so often is the case, the hope of humanity falls on Oregon. Ron Wyden, the democratic senator responsible for blocking the COICA bill we studied last week, has proposed new legislation regulating the exact contexts under which law enforcement may track your phone (and you) with GPS technology.
But even with new protective legislation, all the fourth amendment writing in the book can’t hold much against the “Border Search Exception”, as described in US vs. Arnold. As of early 2008, customs and border patrol agents need neither warrant nor probably cause to search travelers and their belongings at the crossing. While there was a temporary extension to limit the search of electronics, this has since been over ruled. Effectively, when entering the country your laptop is fair game for prying eyes.
THREAT LEVEL MIDNIGHT
So how do you protect yourself?
Sites like FlexYourRights.org do an excellent job instructing citizens on their fourth amendment rights, and how to protect themselves in instances like a routine traffic stop. But what about when you’re crossing the border? How do you protect your privacy when the government has legal access to search you, your belongings, and your data? I offer this quick introduction into protecting your privacy online and on the road:
1) Encrypt your data. Having a password is not enough – a well versed teenager can bypass Windows and OSX account security in minutes. Instead try PGP Desktop or True-Crypt (http://www.truecrypt.org). On my mac, I use Disk-Utility to make small encrypted images on my machine to store personal data.
2) Clear your browser cache and history, and securely wipe your deleted files. [windows] [mac].
3) Choose a strong password (yes, they are bypass-able, but a good first line of defense.) And shut down your computer before reaching customs. This way the RAM (temporary memory which may be holding your password unencrypted) has time to ‘clear’.
4) Consider a cloud encryption service like Google Docs, DropBox, or Carbonite, and upload all sensitive data to download later once you have crossed the border.
5) If you must keep your data on hand, further consider making a hidden encrypted partition on the drive, or otherwise storing the files on a small microSD card.
6) Finally, when you get to your destination, you may want to completely wipe your device if you did not retain control of it for the entire transition. Even the most basic of trojans can resist detection these days!
Less relevant to border crossings, but good practices to stay safe (and private) online:
1) Only use HTTPS (as oppose to HTTP) when accessing any site to which you log in. (bank, facebook, gmail… even iGoogle).
2) Avoid accessing your personal accounts or using your unprotected device on unencrypted or public networks
In short: our increasing complacency as citizens to divulge personal details to third parties is weakening our defense of privacy. At the end of the day, the fourth ammendment needs YOU as much as you need the fourth amendment.
I am confident that most people would agree the framers of the constitution had no idea as to what types of technological innovations were in store for the United States’ future. Consequently, they probably did not know the degree of resilience the constitution would need in order to endure and address the inconceivable degree of technology innovation that has constantly (and unavoidably) forced continuous amendments of individual rights. While this can be applied to basically every aspect of the law, it is especially germane to the adaptation of the 4th amendment and the evolution of the right to privacy.
According to the 4th amendment, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated,…but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” It is clear that the 4th amendment exists to guarantee and protect the privacy of Americans to the fullest extent possible. BUT, this guaranteed protection is limited and bound by the continually changing interpretations of what constitutes an “unreasonable search.” This phrase was never well defined, and its definition has become even more distorted by the growing variables created by technological advances.
Essentially, the central factor in a court’s determination of a search’s “reasonable-ness” is whether an individual demonstrated a “reasonable expectation of privacy.” How might one demonstrate this expectation, you ask? Well there is a seemingly simple answer to that question, but it has been convoluted with what is/is not deemed private in today’s world of technology and communication. Unless you can prove that you had a legitimate expectation that the evidence obtained would not be available to the public and that you took measures to ensure its privacy, then you do not have protection under the 4th Amendment. Any behavior or communication that could possibly (or knowingly) be exposed to public view is fair game to “search and seize”. This is where the overwhelming nature of technology spoils all the fun! (that is, if “fun” = a definite expectation of privacy).
There has been a discernable and, depending on your priorities, alarming trend defining the relationship between technology and privacy by the rights guaranteed by the 4th amendment. The trend: as technology expands…privacy protection /4th Amendment rights diminish. To prove this is not just a blanket statement, I will go through some examples that prove this assertion.
This was one of the earliest examples of U.S. authorities exploiting newly developed technologies to obtain private information by means of intruding 4th Amendment protection. Wiretapping was first operationalized in 1870, and it was not until Katz v. United States (90 years later) that the U.S. effectively restricted this new form of “searching” – a method made possible by the technology innovation of that time period.
With new technology and its inherent ubiquity, the scope of the 4th Amendment could no longer be property-centric. Bare with me here, but the Katz ruling enabled citizens’ to be “publicly private.” Katz’z phone booth conversation was visible to the public, but the conversation itself was private. Up until this point, the government did not need to address this aspect of the “in public” model, and it is even more prevalent today with the ability to access computers, cell phones, etc. from essentially anywhere. By the very nature of establishing that physical intrusion is not required to constitute a search, this ruling has since applied to every 4th Amendment matter involving the investigation of private sources of technology.
As evidenced in a recent Wall Street Journal article, “Courts have consistently ruled that the use of a GPS device to track people outside their home is not a “search” under the Fourth Amendment.” This goes back to the notion that if an individual takes part in something “in public” then they cannot claim to have had a reasonable expectation of privacy, and are thus unprotected from an unwarranted search. GPS, like the telephonic innovation that preempted wiretapping, is another technological breakthrough that has proven to impair the strength of the 4th Amendment in privatizing individual activities.
In 1986, the Supreme Court ruled in California v. Ciraolothat a warrantless aerial observation of a person’s backyard did not violate the 4th amendment. Again, more innovation, less privacy.
Concealed Radio Transmitters
In 1971, the Supreme Court ruled in United States v. White that using concealed radio transmitters worn by undercover informants does not violate the 4th Amendment protection against unreasonable searches and seizures, and therefore does NOT require a search warrant. The Supreme Court held that a defendant’s expectation that another individual with whom he is talking will not reveal incriminating information to the police is by no means protected under the constitution. Realistically, what would stop another individual from going to the police even if he is not an undercover agent?
It is not the exception itself that you should think about in the context of this article, but rather the justification behind institutionalizing this legal doctrine – it is a perfect example of technology’s growing facilitation of increased leniency for privacy invasion and less privacy protection. The doctrine exempts searches of travelers and their property from the warrant requirement expressed in the 4th Amendment (which includes laptops and electronic storage devices). The source of recognition here in addressing the technological connotation at stake is the Ninth Circuit’s reversal of the ruling in U.S v. Arnold. The panel “rejected the argument that the privacy invasion resulting from searching computers is qualitatively different from, and requires higher suspicion than, searching luggage or other physical items.” Originally, the court ruled that, due to the private nature of the information contained in a laptop, border agents MUST HAVE reasonable suspicions before an unwarranted search of someone’s digital data device. This begs the question; with the vast amount of space available to store (personal) information, should digital devices be treated the same as personal property wherein agents need a warrant to seize such devices?
**Accordingly, take Ohio’s State v. Smith as an example. The Ohio Supreme Court decided that since cell phones have the “ability to store large amounts of private data,” the very nature of the device creates a higher level of privacy expectation, thus officers must obtain a warrant to search a cell phone.
Just this month, California experienced a perfect example of how convoluted the standards are across the country, and across time, as to how/whether an individual’s privacy/technology is protected under 4th Amendment.
The Headline: ” California Veto Enables Police for Warrantless Cellphone Searches.” But what about State v. Smith?? Apparently Governor Jerry Brown would not fit in in Ohio. Gov. Brown vetoed the legislation that would require police to obtain a court warrant to search suspects’ mobile phones. I.e. any police officer can, without restriction, access anyone’s e-mail, call records, text messages, photos, banking activity, etc. How’s that for civil liberties?
The truth is, yes, the immense growth of technology for the last century has been integral in the gradual weakening of the 4th Amendment. It has dictated how much protection we can expect – an expectation that is now significantly less substantial as a result of both the sophisticated surveillance methods authorities have at their disposal, as well as the access every individual now has to advanced technologies. By this I am indicating that the government feels the need to regulate more heavily due to how much one can accomplish and maneuver with digital mechanisms today. With new innovations in technology creating such a worrisome threshold for criminal actors to communicate and execute harmful agenda, the central issue stretches far beyond the mere relationship between technology and the 4th Amendment. More important than expecting an unconditional right to privacy, we as Americans should be thinking about what we are willing to sacrifice to ensure national safety andthe regulation of potentially criminal activity.
Where Should Priorities Lie?
I expect a strong right to privacy just as much as the next American. However, in recognizing the incredible abilities technology has given the world, I am more than willing to give up whatever degree of privacy necessary to make sure that those who are hiding something from the government/public are given as little room possible to act and communicate freely and privately. The indisputable fact is, unless you are hiding something that you probably know you should not be doing, then as an American citizen, you should really have no reason to resist searches and seizures. The people who fight the issues at stake with the 4th Amendment should only be those who are hiding something illegal. If you do not fall under this category, then I really do not think you should take issue with the U.S. MAYBE crossing a few lines to ensure the safety of our country. So what is more important: getting your 100% protection of personal privacy or letting authorities slightly infringe upon the 4th Amendment as they see fit to identify criminal activity. This applies both domestically and internationally.
I am not implying you should not feel entitled to your constitutional rights, but I am implying that there is a certain balance wherein both sides need to make mature sacrifices.
“This is the kind of thing we like to throw lawyers at,” the ACLU told Yasir Affi, according to a Wired article from October 2010. Affi, a US citizen since birth, had just days before found a GPS tracking device planted on his car. FBI agents reclaimed the device, offering no explanation as to why Affi had been targeted for GPS tracking in the first place.
The ACLU, as well as many others, sees warrantless GPS tracking as a violation of our Fourth Amendment Right to be protected against unreasonable searches and seizures. This fall the Supreme Court will consider the issue when it hears US v. Jones, a case involving a man’s conviction of conspiracy to distribute cocaine, a conviction that was based in part on four weeks of GPS data collected surreptitiously by the police.
Specific Issues with Warrantless GPS Tracking
Many organizations have filed amicus briefs with the Supreme Court, arguing why tracing a person’s movements using GPS without a warrant is a violation of Fourth Amendment Rights. The Yale Law School Information Society Scholars brief, for example, portrays GPS tracking as “superhuman,” giving law enforcement monitoring capabilities that are so beyond what they could otherwise accomplish as to effectively make them omniscient. This omniscience, the brief says, is a violation of privacy.
As Orin Kerr writes on SCOTUSblog, figuring out whether we can reasonably expect privacy from GPS tracking on public land (like roads) is complicated by an Inside/Outside standard that has arisen out of Fourth Amendment cases like Katz, Kyllo and Place. That is, “A search occurs when the government intrudes upon a private person, house, paper, or effect, but does not occur when the government merely observes something in a public space or in a space where the government is otherwise entitled to be.” Kerr dislikes the idea of doing away with the inside/outside dichotomy, which leads him to conclude that the court should permit warrantless GPS tracking.
Many people would disagree with Kerr, if only because the idea of the police being able to track your every movement on a whim is an extremely unsettling prospect. Kerr formulates his thoughts in order to answer the question when and where can we expect privacy? And there are few public situations in which you can reasonably expect privacy, a closed phone booth being one of them, but likely not the open road.
In order to try to figure out where our unease with GPS tracking comes from, I changed how I was looking at the issue from one of identifying where people can expect privacy, to trying to figure out what kind of privacy we fear losing to warrantless GPS searches.
If you’re driving on public roads you can hardly expect that your location is secret or deserving of secrecy. However, the people that see you driving in one area of town don’t know where you are going or where you have come from. Similarly, when you arrive in a new part of town the people who might see you there have no idea where you had been driving before. My point is that at any given moment your location is probably known to strangers because of the public nature of driving, but those same strangers don’t know where you have come from and will likely not know where you go after leaving the vicinity. Thus, I believe it is reasonable to expect that most of your driving history remains private from any particular individual, despite the fact that at any moment in time your location is not private. Where I drive reflects a lot about who I am through indicating where I spend my time and what activities I do. Even though strangers may see me at distinct moments during the day, no one person gains a complete understanding of how my driving creates patterns that reflect who I am.
I am not contending that, contrary to US v. White, I can expect others to keep confidential the locations at which they see me. Rather, it is wholly unrealistic to expect that the thousands of people who see me each day would work together to sort out my entire day’s driving history. With this kind of expectation of privacy—that my whole driving history is private from any one individual—GPS does start to seem like a “superhuman” tool. It allows one particular agent, law enforcement, to become omniscient regarding my driving behavior—a level of knowledge that on a day-to-day basis we expect others to find impossible to attain. For law enforcement to obtain so much information about my driving habits, other available tools like putting a tail on me would probably become intrusive enough to cause me to alter my driving. GPS allows them to monitor me “in my natural habitat”, so to speak. So, I argue that we should start thinking not only about where we can reasonably expect privacy, but also from whom we can reasonably expect to keep which data about our lives private.
Smartphones and the Private Sector
If we assume that law enforcement should need a warrant to track individuals using GPS, then another issue is raised. Why are we so relatively OK with our smartphones tracking us in a much more personal way than the police do? Last year it was discovered that iPhones track their users’ whereabouts using GPS coordinates. I don’t know whether all smartphone providers do track users’ locations, but the devices certainly have the capability to do so. To my knowledge, companies such as Google and Apple don’t currently sell identifiable data, but it ‘s not so hard to imagine that someday smartphone makers and/or service providers would be interested in collecting person-specific location data with the intent to sell it. Then, the police would be able to simply purchase the data for which they otherwise need a warrant to collect themselves. Such a situation would serve to nullify whatever protections the public has against warrantless GPS tracking. However, if we were to prevent law enforcement from purchasing data like these, that would put law enforcement in the awkward position of not having access to the same information that the general public could purchase.
Geolocation Privacy and Surveillance Act
Today, Senators Wyden (D-OR) and Chaffetz (R-UT) are co-sponsoring the Geolocation Privacy and Surveillance Act. The legislation is supposed to protect citizens through requiring warrants for GPS tracking and reduce the burden on law enforcement through reducing litigation associated with warrantless GPS tracking. The bill is a good step forward, but what will eventually happen regarding the massive amount of geolocation data gathered and to-be-gathered by the private sector is unclear. In order to stay on top of protecting our Fourth Amendment right to protection from unreasonable searches we need to start looking past government and begin speculating how private sector data collection has the potential to change how we control our private information in the future.
As students at Yale, it is likely you or one of your close friends has spent some time studying abroad in China. While there, it is likely that they circumvented “The Great Firewall of China,” and if they went while as a Yale undergrad, they likely used Yale’s VPN client service to accomplish this. For us, the Great Firewall falls with just a single click and a NetID.
In discussing internet censorship, it is easy to get bogged down in discussions of oppressive government control, Web companies and their compliance/defiance, or the inherent civil rights that may be violated, but the pertinent discussion to have before all of these is: Are these governments actually effective in their attempts to censor the internet?
Reporters without Boarders maintains a list of countries which “censor news and information online but also for their almost systematic repression of Internet users,” and bestows the lovely title of “Enemies of the Internet” to them. On this list currently are: Burma, China, Cuba, Iran, North Korea, Saudi Arabia, Syria, Turkmenistan, Uzbekistan, and Vietnam. Each of these countries have a variety of control mechanism in place and are mostly aimed to limit access to information of political opposition, discussion of religion, pornography, gambling, and site about human rights. To determine the effectiveness of these controls, one must focus on each mechanism, and the ease or difficulty of it’s circumvention. The central tactic is that the government limits the access of the internet to the people, often being the sole provider. They then are able to monitor the activity of all the users in the country and can limit access through a variety of methods, most of which have a work around to circumvent.
IP Address Blocking
Technique: Blocked IP addresses are made inaccessible. This is one of the most popular techniques, and the main one that is used to block specific sites, such as Youtube in China. If an IP address is hosted by a web-hosting server, all sites on the server will be blocked.
Circumvention: Establish a connection to a proxy which has access, such as the Yale VPN. A VPN service has the added bonus of being very secure. Another technique is using a Web to Email service, which emails you the text content of a website of your specification.
Domain Name System Filtering
Tecnique: Blocked domain names, maintained in a registry, will automatically return an incorrect IP or fail to connect.
Circumcision: Input the IP address (try hex and octal if decimal doesn’t work) instead of the domain name, using sites such as NSLookup
Technique: Ceases transmission after or takes away access if triggered by uses of keywords. In Cuba this technique is extended by monitoring word processors, where upon entry of a dissenting keyword the word processor is closed.
Circumvention: Reduce the IP stack’s MTU/MSS to reduce the content of each packet. If the amount of text is small enough to divide up the trigger words, they will not be detected by the program scanning the string.
Technique: Remove specific portals of the internet, such as search engines, making it difficult to find information effectively.
Circumvention: Slowly build up a library of useful domain names and URLs, stumbling from site to site. This one is really annoying to deal with.
As you can see, the effectiveness of these techniques increases when they are used together. For instance, blocking search engines and IP addresses would make it difficult to locate an proxy that would circumvent the IP blocker. However, there is still one tactic that is more powerful than all the rest:
Technique: The most extreme case is presented by North Korea, where in efforts to censor information to the public, only specific government officials have internet access.
With the exception of the North Korean extreme, there still exists a way to circumvent almost every kind of censorship that these governments impose. How then can we treat these acts of censorship as effective? One has to consider the framework of an insider attempting to circumvent from the inside. We enter this problem with all of our prior tech knowledge and tools. Most importantly we know of the existence of sites that may be restricted in other countries, and we are able to search ways to circumvent them. In many of the countries listed above this is not the case, as another one of the main control measures they take is to limit the information about internet circumvention, by the same techniques of IP blocking or packet filtering. New users in these countries don’t have the groundwork we have from time growing up with unregulated access to information on the internet.
This is the true nature of the control of these countries. It doesn’t matter that they are actually effective in censoring the internet, but that they impede the population. For us American college kids, full internet access is a necessity. We need our daily doses of Facebook and Youtube or else we will go into withdrawal. We will find ourselves circumventing these Great Firewalls within a day or two of entering a country that takes removes access from them. It’s likely that the population of these countries just accept some of their lost access rather than going through the risk and hassle of circumventing it. The long term goal is to impede the users enough, continually making it more annoying to circumvent so that eventually new users do not even know it is possible, and gaining that information is just as impossible. At this point the government has become effective in censoring, even though it is not the censoring technology that accomplishes this.
TL;DR: Some governments suck and try to censor the internet with circumventable ineffective means. The true danger is what happens when people stop bother to circumvent these measures, and give in to the censorship.
The border-blurring brought on by the Internet must just be driving oppressive regimes nuts. How are you supposed to control what information people get their hands on when it’s coming from the other side of the globe at the speed of light from people beyond the reach of your thugs and laws? Well, many such regimes have adopted the tactics of similarly-minded paranoid conservative parents who don’t know what to make of the Internet. If the source is beyond their control, they can at least attempt to block it at the point of entry.
This puts the foreign companies providing the content in a bit of a pickle. They don’t want to lose their market share in the country in question, but they (hopefully) don’t want to facilitate oppression either. Or, they don’t want to look like they’re facilitating oppression. In fact, foreign companies are in a better position than citizens of the country in question, since they’re able to use their economic clout to influence policies without the same risks and restrictions that domestic actors face. So, striking a balance between these concerns is of great importance to the success and reputation of the company as well as the human rights situation in the oppressive country. Here are some of the options foreign companies have:
Cooperate & Facilitate
Do whatever the oppressive government wants you to. Stop doing things they want you to stop, and give them the information they demand.
Pros: You get to continue operating in the country. Market share and profit and stuff.
Cons: You’re doing evil, and everyone will hate you for it. You could also get in legal trouble in the US.
Example: Yahoo!, China, 2004. Pretty much the worst possible way to handle this sort of situation. In 2004, the Chinese government released a document warning journalists about reporting on sensitive topics because of the looming 15th anniversary of the 1989 Tiananmen Square Protests. Journalist Shi Tao sent a brief of this document to the Asia Democracy Foundation via his Yahoo! e-mail account. The Chinese government found out and demanded Yahoo! hand over information about the sender. Yahoo! did it without even asking what it was for. As a result, Shi Tao was sentenced to ten years in prison. Yahoo! was criticized by everyhumanrightsorganization in the book. Congress investigated the incident, and later reprimanded Yahoo! for not giving full details to them regarding the incident. Rep. Tom Lantos (D-CA) told Yahoo! founder Jerry Yang, “While technologically and financially you are giants, morally you are pygmies.” Yahoo! was sued in the US on behalf of Shi Tao and another journalist, and they settled out of court for an undisclosed sum. There still exists a campaign to boycott Yahoo! because of this, and I still refrain from using Yahoo! services. Oh, did I mention they did the same thing two years earlier, resulting in another ten year prison sentence for journalist Wang Xiaoning? And were complicit in helping to convict Li Zhi and Jiang Lijun, two other government critics?
Example: SmartFilter, Middle East. McAfee’s SmartFilter software has been used by governments in Tunisia, Sudan, Oman, the UAE, Kuwait, Bahrain, and Saudi Arabia to block certain Internet content from reaching users. They make no effort to prevent or prohibit governments from using this software, which is allegedly aimed at homes and schools. The software includes a database of more than 25 million blockable websites in various categories. Such filtering databases as well as selective algorithms have been shown time and again to be massively flawed in the categories they attribute to various websites. But, instead of simply inconveniencing a student who wants to research safe sex, AIDS, or religious tolerance (God forbid), it alters the information that can make it to an entire country of Internet users. The OpenNet Initiative also accused Iran of using SmartFilter, though the US’s embargo against Iran would prohibit the sale or licensing of this software to Iran. The company has said that Iran pirated their software. Some say Iran now has its own censorship software. While McAfee doesn’t market their software to oppressive regimes or for the purpose of mass censorship, some selectivity in who they license their software to or the scale at which they allow it to be implemented wouldn’t be a bad idea. It wouldn’t stop governments from pirating it, but at least it would help McAfee from appearing complicit in censorship.
Unfortunately, there are way more examples of this response than any of the responses below.
Set a limit to your capitulation while acknowledging the authority of the host government as set out by its laws.
Pros: You might get to continue operating in the country without giving in entirely. You would also help make it clear that there is a limit to what governments can force foreign Internet companies to do.
Cons: The government might still prevent you from operating there. You might not get the benefit of being seen as standing up to oppression.
Example: YouTube, Turkey, 2007. The Turkish government mandated that Turkish telecom providers block access to YouTube because it hosted some videos that were said to insult Mustafa Kemal Atatürk. Nicole Wong, deputy general counsel of Google, which owns YouTube, decided that Google would block Turkish IP addresses from accessing videos that clearly violated Turkish law. Later, though, a Turkish prosecutor demanded that Google block users anywhere in the world from accessing such videos. This is where Google drew the line, and they refused to capitulate to the unreasonable request. YouTube remained blocked in Turkey until 2010 when Turkey’s Transport Minister, in charge of Internet issues, lifted the ban, proclaiming that “common sense prevailed”. So, despite the dismay and limited success of the conservative elements that demanded the ban, internal pressure and the realization of YouTube’s importance prevailed.
Move Services Out of the Offending Country
The more of a company’s operations that physically take place within the offending country, the more power the government can assert over the company. Partnering with local firms presents similar problems. Locating data storage in particular outside of the country allows in-country users to move their data farther from the reach of their government. There are few examples of companies making this kind of drastic business change, but the choices companies make before starting business in other countries affect their relationship to freedom of speech controversies in the future. For example, Google and Microsoft don’t partner with Chinese companies (though they have their own workers in China), whereas Skype and Yahoo do, and the latter companies have lost much more face in controversies surrounding censorship in China.
Pros: It’s likely that the offending country’s government will block your services anyways, but at least the option is there should they choose to unblock them in the future. There’s also the advantage of preserving your reputation and being seen as not doing evil.
Cons: Your services might very well get blocked. Your local workers or former local workers could face trouble.
Example: Google, China, 2010. When Google discovered hacking attempts targeted at the Gmail accounts of Chinese human rights activists, which would put those activists in great danger, they reacted harshly. They announced that they would stop censoring search results on Google.cn, which they had previously agreed to do in order to be allowed to start operations in China. They even went so far as to say that they would shut down their operations in China entirely if the government continued causing problems. While Hong Kong is technically part of the People’s Republic of China, it operates under radically different laws regarding freedom of speech. As is often the case with China’s Internet blocking, the accessibility of Google.cn varies by time and location.
Shut Down Services
No longer offer your services to the offending country and its Internet users.
Pros: You stand your ground, and the offending government will (well…might) think twice before they try to muscle a foreign company again.
Cons: You’re no longer in that country’s market. Whatever limited information or services you were able to provide or would be able to provide are no longer available to users in that country. Your local workers or former local workers could face trouble.
Example: Websense, Yemen, 2009. Websense, like SmartFilter, is web filtering software similar to SmartFilter. Like SmartFilter, it is not intended or marketed to be a tool for government censorship. Actually, it was what my high school used to ban naughty (and not so naughty) things. But, unlike SmartFilter, Websense has an explicit anti-censorship policy under which it “does not sell to governments or Internet Service Providers (ISPs) that are engaged in government-imposed censorship”. When Websense discovered that the Yemeni ISPs were using their software to implement government-imposed mass censorship, they prohibited Yemeni ISPs from accessing updates to their software.
Ignore the Government
There are a lot of services that presumably carry content that oppressive governments wish to block and have probably requested to have taken down, but controversy rarely arises when companies just ignore those requests. It may be useful to be linked to free speech and democracy movements, as is the case with Twitter. Some users will undoubtably find a way to access your website, and it will be much more valuable to them if, when they get there, there is freedom of speech.
Pros: Like the previous several options, you get some good karma by not giving in to an oppressive government. You remain in control of your content. By not engaging the government, the issue may not go any further, and the government may not end up enraged and looking for a way to get revenge or assert its power.
Cons: You may get blocked. You may get in legal trouble if you ignore government requests.
Example: Twitter. Twitter’s strategy is not even engaging with oppressive governments about getting their website unblocked. They focus more on working on developing ways to circumvent censorship. As Twitter CEO Evan Williams put it, “The most productive way to fight that is not by trying to engage China and other governments whose very being is against what we are about.” By continuing to host politically controversial content, Twitter has become central to many opposition movements. Even though it is at least partially blocked in Iran, many Iranian dissidents communicate using Twitter, and a lot of information makes it out of Iran via Twitter.
I shouldn’t need to explain why it’s bad to help government oppress their citizens. So I won’t. But all too often, the moral repercussions of business decisions like these get looked over because they don’t have overt monetary value. But it’s inextricably linked to reputation, which is inextricably linked to success. Part of Google’s success is that it is seen as not doing evil. In a world where people are increasingly wary of big corporations (see: all those “Occupy” movements right now), it’s important that a company be seen as a friend, not an enemy.
OK. Time to open Pandora’s box. Today’s topic? CENSORSHIP.
The idea of censorship is inextricably linked to the concept of information dissemination through the media, be it through more traditional means such as newspapers and television, or, more recently, new technologies such as the Internet. In any case, the act of censorship is also, by definition, associated with some entity that does the censoring.
The first example of a censoring entity that comes to mind (for me at least) is Joseph Goebbels’s Ministry of Public Enlightenment and Propaganda in Nazi Germany, before and during the Second World War. This particular governmental entity (an entity with actual, legal executive power over a large population) is often cited as the ultimate example of a disseminator of propaganda and censorship. Where did this power come from?
Ever since the advent of the first electronic media formats, namely film and radio, it has been relatively easy for governments to control the dissemination of information (barring a legal framework to prohibit such behavior, but we will discuss this later). In other words, virtually unquestionable executive authority and capability to fund high-cost, effective propaganda has often allowed governments to be the censoring entity, as in the case of Goebbels’s Ministry. In the past, the same did not hold true of non-governmental entities. Often lacking in funding or power to affect the masses, businesses, organizations etc. were rarely seen controlling information flow.
Today, more than six decades after Goebbels, things have changed. In this digital age, censorship has taken on new dimensions and applications. With the advent of the Internet, government control over the “masses” has lessened, while big corporations, especially in the technology sector (can anyone guess who I have in mind?) can take part in censoring, or prohibiting censoring for that matter.
But before we move on to specific examples of censorship and its implications today, let’s take a look at the legal ideas and framework behind it.
B. Legal Framework
OK. So let’s start with some connotations; Censorship. Media. Information Dissemination. Information suppression. Propaganda. Government conspiracy. Dictatorship. Totalitarianism. I don’t know about you, but none of the above sound really positive to me.
Well, even if you don’t agree, it seems that enough people do since popular opinion holds that censorship is usually bad, excluding certain exceptions. (The links chosen are just indicative; there are many more interesting discussions if one just googles “censorship is bad”). Indeed, most democratic countries have a legal framework (be it in the form of statutes or precedent court cases) that addresses the issue of censorship. In my analysis, I will use only U.S. law, citing specific examples, but the underlying moral and legal principles are more or less the same for all countries.
In the United States, censorship is considered unconstitutional under the 1st Amendment. The First Amendment states that:
“Congress shall make no law […] abridging the freedom of speech, or of the press […].”
Thus, any attempt by any entity to censor information in the media can be found to infringe on the First Amendment rights of the publisher, as “freedom of press” is compromised.
The unconstitutionality of censorship was upheld by the U.S. Supreme Court in a landmark decision in 1971, when it ruled in the favor of the plaintiff of a case that would be come to be know as the “Pentagon Papers” case.
2) New York Time Co. v. United States
In the Pentagon Papers case. the executive branch (surprise-surprise) of the US had sought an injunction against the New York Times, to prevent it from publishing a report on the Vietnam War. The report, entitled “United States – Vietnam Relations, 1945–1967: A Study Prepared by the Department of Defense”, had been leaked by Pentagon analyst Daniel Ellsberg and would humiliate the Johnson administration and the government as a whole if it were published. The Times defended the publication under the First Amendment, leading to a trial that was eventually appealed all the way up to the Supreme Court.
Legally, the Times were in the right; the editors had obtained the material legally, and its publication was supposed to be protected under the First Amendment (freedom of press). Furthermore, the publication of the report would not affect the government’s ability to protect its citizens in any way, so there was no serious argument against publication pertaining to national security.
In a decision which would determine the future of censorship legislation, the Supreme Court ruled that the government had no right to place restraints on the publication of content it sought to suppress, citing Near v. Minnesota: “the chief purpose of [the First Amendment’s] guaranty [is] to prevent previous restraints upon publication.”
3) Exceptions to the Rule
What is a rule without exceptions?
J. Brennan, Associate Justice of the Supreme Court at the time, brings up some very interesting points in his concurrence, concerning specific exceptions where censorship can be tolerated or considered legal.
i) The first and most important exception, Brennan posits, can be inferred by certain past Supreme Court cases, and concerns “a very narrow class of cases”; those affecting national security. Specifically, Brennan mentions that in the instance that “the Nation is at War” or some equivalent situation, “the First Amendment’s ban on prior judicial restraint may be overridden”. But, before it can be overridden, there must be significant “governmental allegation and proof that publication must inevitably, directly, and immediately cause the occurrence of an event kindred to imperiling the safety of a transport already at sea”. In other words, the government must prove an immediate, direct and highly consequential effect on national security. Needless to say, this burden of proof is quite large and not easily met.
ii) The second possible exception (if it can be called that) is the case of obscene material. Once again, this exception arises from another Supreme Court case: New York v. Ferber. The background of the case is not pertinent to our discussion, but the finding is; the Supreme Court held that any material deemed obscene (legally measured by an obscenity standard developed in Miller v. California) can not be protected under the First Amendment. Therefore, any action taken by an entity to censor obscene material is absolutely legal. The reason I mention this rare, peripheral exception now, is that I would like to discuss a modern-day scenario where it applies a bit further down
C. Censorship in the Internet Age
With this legal framework in mind, I would like to discuss four scenarios that have unfolded in the recent past, each of which can help us define the changes in the dynamics of censorship today.
1) Wikileaks: The Richard Stallman of Free Media.
(Please excuse the analogy, but when I thought about the parallels, I couldn’t help but include it).
I start with Wikileaks because it is one of the more clear-cut, legally speaking, situations. In terms of background, the situation differs only slightly from the “Pentagon Papers” case. Indeed, in the “about” page of their website, the editors of Wikileaks directly quote Justice Black’s (also an Associate Justice for the Supreme Court at the time) concurrence: “’only a free and unrestrained press can effectively expose deception in government.’ We agree.”
So what are the parallels with the Pentagon Papers? Well, just like the New York Times, Wikileaks receives its original material legally, by trading for it with secret sources (the methods by which the sources themselves gather the material is legally-speaking completely irrelevant). Furthermore, under the US Constitution, the publication of the material is legally protected by the Freedom of Press clause of the First Amendment.
This being said, there are the aforementioned exceptions to think about. Little if any of Wikileaks’ material can be categorized as legally obscene, so the 2nd exception is out of play. But some of the material released on the site could conceivably have an impact on National security. Indeed, this is the opinion held by many members of the government. But, as Justice Brennan stated in his concurrence, the burden of proof for such a claim would be immense. It would be extremely difficult to prove a direct effect on national security. In the words Robert Gates, former CIA chief: “Is this embarrassing? Yes. Is it awkward? Yes. Consequences for U.S. foreign policy? I think fairly modest.”
In conclusion, barring extreme cases, all Wikileaks material is legally protected under the First Amendment and censoring it is unconstitutional. This is why most, if not all, attempts to persecute the organizations legally have failed (as the editors blatantly boast on their site). In the absence of a plausible case against Wikileaks, prosecutors have alternatively pursued actual leakers (e.g. Bradley Manning), whose acquisition of the material is arguably illegal.
Now for the fun part: the Richard Stallman parallels. While skimming the “about” section of the Wikileaks site, I detected an underlying tone of “rebellion”, for lack of a better description. There was a certain, vague smugness in it, which, to me, suggested a “stick it to the man” mentality. Don’t get me wrong; I don’t for a moment doubt their belief in absolute freedom of press. But at least part of their mission seemed to be fueled by hatred (justified or otherwise) for demonized governments and multinational corporations. Similarly, Stallman has openly rebelled against the big tech-software companies (e.g. Microsoft) by developing the DNU General Public License. And most people would agree that Stallman is at least partly driven by scorn for the big tech companies who “force people to pay for software.
Let’s take it to another level: Stallman’s purpose in creating the GPL was to help software programmers work together and build on each others’ work (promoting the common goal of improving software), without worrying about copyright infringement. Drawing the parallel, Wikileaks editors advocate the cooperation of all media outlets “to bring stories to a broad international readership” (promoting the common goal of complete freedom of press).
These are the most obvious similarities I can think of currently. But I won’t stop here: following is a funny strip from the infamous xkcd webcomic, an obvious exaggeration of Stallman’s ideology: (I cropped part of the comic, as it is irrelevant to the point I’m trying to make; click on the picture to see the original).
And now my own iteration of the picture, rethought for Wikileaks.
2) Baidu-Google in China
One of the most discussed issues in the history of Internet censorship has been the Chinese government’s Internet search engine policy. Baidu, the largest online search engine in China, allegedly censors a huge list of “undesirable” sites and searches at the behest of the socialist government (rationalized as “according to the policies and regulations of China”). This censorship includes any content that criticizes the ruling Communist Party, which has led to a global outcry from democracy advocates worldwide. In this case, the entity attempting censorship is once again the government. However, unlike in the past, the government has no direct control over the information dissemination. It must instead rely solely on its executive power, which should influence the true information disseminators (Baidu) to do its bidding. As a side note, a lawsuit was recently brought against Baidu in the US for unconstitutional conduct in “blocking prodemocracy speech from search results”. This lawsuit piqued my interest because it opens up all manners of questions about the extent to which a Chinese organization can be held accountable in the US. But that is a discussion for another day.
The case was very similar with Google, at least until last year. The search engine giant had also been the subject to Chinese regulation, which meant that it was obligated to filter results and censor certain topics (same as those censored by Baidu). In much the same way as with Baidu, the socialist government relied on its executive power to influence Google’s policy. But Google is different than Baidu in one key respect: it is not based in China. Thus, when it decided to move out of the country and into Hong Kong last year (a move that Baidu would be unable and perhaps unwilling to perform, considering its base of operations is in China), it was no longer obligated to censor search results, since the Communist Party’s executive and judicial reach did not extend over China’s borders. Thus the entity that has the power to disseminate and censor information in this case, chose to ignore the latter power.
3) The Arab Spring
The beginning of 2011 saw many rebellions start and take hold in various Middle Eastern countries including Egypt, Libya, Tunisia etc. These are the first rebellions to take place in the era of the Internet, and indeed the World Wide Web seems to have played a significant role in the uprisings. During the rebellion against Hosni Mubarak in Egypt, one activist in Cairo tweeted that “We use Facebook to schedule protests, Twitter to coordinate, and Youtube to tell the world.” Another, humorously tweeted:
As is the case with all rebellions, the local governments wanted to quash the uprisings. Recognizing the significance of the Internet, as well as their own inability to effectively monitor and censor it, some states tried different methods of controlling it. In Egypt and Libya, the government went as far as completely denying access to the Internet as a whole, while in Syria, a government-backed organization severely hacked and defaced several social media sites the rebels were using. These are all, of course, acts of censorship and suppression of the citizens’ freedom of speech, as well as publishers’ freedom of press. Which I guess partly justifies the rebellions in the first place.
4) Google and Child Pornography
I will end on a more optimistic note, with another instance of positive change in the dynamic of censorship (it also relates to the obscenity exception I promised to talk about). In a wholly agreeable step, Google has recently attempted to tackle the problem of child pornography on the Net. It has reconfigured one of its filtering algorithms to recognize and filter certain patterns that are indicative of pedophilic of other such obscene conduct. By practically any and all social norms, child pornography passes any obscenity test, which means that, under the New York v. Ferber precedent, it is not protected under the First Amendment. So, in a sense, filtering such results is not censorship per se, since it doesn’t violate any constitutional rights. Therefore Google can legally exclude all such results from its searches without being sued for suppression of the freedom of press. Once again the entity that has the power to disseminate and censor information has chosen to ignore the latter option. However, this time it is not influenced by another entity (e.g. a government), as it was in the Baidu case, but rather by the social norms (or standard) of the community which would condemn it if it didn’t act so.
The advent of the Internet has radically changed the nature and synamic of censorship in the media. While in the past the censoring entity was usually a government, resulting in propaganda, the Net has ushered in a new era. A government’s ability to censor has been radically decreased, now that it cannot directly control the information flow to its citizens (even if it did control the Internet, which it doesn’t, the sheer volume of information on the Web should make monitoring and control it extremely hard).
So who is the new censoring entity? You got it. Big technological corporations that can control information flow over the Internet: Google, Facebook, Baidu. It is easy to demonize these entities, just as it was easy to demonize the propaganda and censorship conducted by governments in the past. Indeed, who’s to say that there aren’t incentives for these entities to censor (e.g. profit), just as there was for governments (e.g. public opinion). We saw that Baidu is basically a marionette for the Chinese government when it comes to Internet censorship. But this is not always the case; we also saw that Google has both declined to censor material the Chinese government asks it to and tackled the problem of child pornography. Definitely better than if the Communist Party was in charge… Don’t you agree?
In the United States, freedom of speech is the very first protected right listed in the Bill of Rights. As the First Amendment reads:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
The Supreme Court has had many interpretations of this amendment over what “freedom of speech” in the First Amendment actually implies. Although one might think of freedom of speech as closely associated with our identity and heritage as Americans and thus a ubiquitously accepted right, there have been several controversial rulings on this issue, especially in cases where one individuals’ freedom of speech might be perceived to infringe on others’ preserved rights (ie: if my freedom of speech to shout fire in a movie theater infringes on your freedom to not be trampled).
Indeed, practically speaking, it is apparent that simply not all types of speech can be tolerated for a society to function. Some forms of speech are accordingly plainly and thoroughly outlawed by US law, such as fraudulent advertising, child pornography, fighting words, words used in a criminal transaction, unlicensed broadcasts, copyright infringement (hello DMCA), libel, slander, and threats, among others. Most of these forms of speech are restricted because they have a compelling government interest: the US government may regulate, or censor speech if it has a compelling interest, is a public concern, or threatens national safety.
For example, it is even considered legal to express certain forms of hate speech as long as one does not actually do the activities or encourage others to do them. However, once these groups overstep their boundaries and their actions can be interpreted as violating a compelling government interest, they can (and have) been regulated. For example, the Ku Klux Klan has been denied certain marching permits (a real tragedy) and the Westboro Baptist Church (which became famous recently for protesting military funerals) was sued for its activities (however the ruling was later controversially overturned on appeal in the US Supreme Court). These examples illustrate that while legal history has defined certain finite limitations on the freedom of speech, courts have ultimately historically held that in order for freedom of speech to exist, it must necessarily be protected to allow the unpopular, offensive, and distasteful.
Background on Wikileaks
The “Wikileaks controversy” is a great example of the tension between this freedom of expression and censorship. Wikileaks (NOT TO BE CONFUSED WITH WIKIPEDIA) is the name of an international non-profit organization run by founder, editor-in-chief, and director Julian Assange, that publishes submissions of private, secret, and classified media from anonymous news sources, news leaks, and whistleblowers. Since it went online, the site has published an extensive catalogue of secret material, ranging from materials on procedures at Guantánamo Bay, to the contents of Sarah Palin’s private email account. Look at Trigg!!!!
What Assange and his Wikileaks team are doing is technically not illegal under international law nor under various countries’ laws (more to come on this later); nonetheless, several nations (notably Assange’s home country of Australia, China, Germany, Iceland, Thailand, and the United States) have limited access, or in some cases blacklisted and completely blocked all traffic to the site. The United States has blocked access to the site in various government agencies in addition to issuing several other 1984-reminiscient demands. I’m insulted they didn’t threaten Yale. (Although this claim was later refuted by government officials…).
Larry Flynt Reincarnate- Another Champion for Freedom of Expression?
Assange himself believes that Wikileak’s role (and his on Earth apparently) is to expose injustice, not to provide an even-handed record of events. In an invitation to potential collaborators in 2006, he wrote, “Our primary targets are those highly oppressive regimes in China, Russia and Central Eurasia, but we also expect to be of assistance to those in the West who wish to reveal illegal or immoral behavior in their own governments and corporations.” He has argued that a “social movement” to expose secrets could “bring down many administrations that rely on concealing reality—including the US administration.”
Many agree that Assange’s work is beneficial and even noble, believing that by increasing transparency of government operations, Assange will ultimately force governments to act in more accountable manners. Calling Assange a “champion of freedom of speech,” proponents of his work believe that Assange provides information that the public has a right to know, and that both international and US efforts to suppress his efforts constitute a significant threat to freedom of expression world-wide. Proponents of his cause believe that the right to freedom of information outweighs the potentially dangerous effects of revealing US military strategy, pointing to the fact that none of the published cables were kept at the highest levels of secrecy, inferring from this that nothing truly sensitive has been revealed. Organizations such as Reporters Without Borders (RSF) has condemned the “blocking, cyber-attacks and political pressure” directed at the cables’ website from all over the world, and expressed concern at comments made by American authorities “concerning Wikileaks and its founder Julian Assange.” “This is the first time we have seen an attempt at the international community level to censor a website dedicated to the principle of transparency,” RSF said.
Indeed, Assange’s work has been received to some international acclaim, as the Wikileaks foundeer has received a number of awards and nominations, including the 2009 Amnesty International Media Award for publishing material about extrajudicial killings in Kenya and Readers’ Choice for TIME magazine’s 2010 Person of the Year.
Or a Criminal?
However, despite the seemingly good intentions of Assange’s work, his work has had serious repercussions. Some of the information that his organization has published includes confidential military documents that reveal great deals of US strategy and policy. As Wikileaks makes this information publically-accessible, Assange’s work has potentially compromised US national security, essentially placing in danger not only the lives of soldiers who rely on the secrecy of these documents, but also the lives of citizens at home who are now more vulnerable to attack.
Claiming that his information compromises national security, the US Justice Department has attempted to prosecute Assange under the Espionage Act, which makes it broadly illegal to compromise national security by interfering with the US military. In 2011, an unknown person in Cambridge, Massachusetts, had received a subpoena regarding the Espionage Act’s “conspiracy” clause 18 U.S.C. § 793(g), as well as the federal embezzlement law 18 U.S.C. § 641, a statute used in some other Espionage Act-related cases. A grand jury has begun meeting in Alexandria, Virginia, to hear evidence and decide whether an indictment should be brought.
However, critics of the legal approach of charging Assange under the Espionage Act argue that the broad language of the Act could make news organizations and anyone who reported, printed, or disseminated information from Wikileaks subject to prosecution as well. This slippery-slope argument might ultimately undermine this attempt to prosecute Assange, as further spinoffs from this type of reasoning might be interpreted as uancceptably limiting freedom of expression (if a magazine publishes an article from a magazine that publishes an article from a magazine that publishes an article from Wikileaks – WHERE DOES IT END!!?!?!).
Has the US acted correctly in its response to Assange and Wikileaks? Should our censorship laws be altered to prevent this type of unwanted freedom of expression? Does their inability to prosecute (as of yet) mean that Assange is without blame?
Yes, no, and probably not. The fact remains that our First Amendment technically protects his right to freedom of expression, and, just like protecting the right to protest military funerals, if we want to stay true to our traditions of maintaing a society of freedom of speech, Assange shoudl not be prosecuted for his Wikileaks-related work. Our censorship laws in this regard, should not be fundamentally changed in order to close a loophole that Assange is seemingly exploiting. Thus, the fact that the US (at best) is proceeding cautiously with charging Assange is the correct response if we wish to maintain true to our traditions.
This does not, however, mean that I believe Assange to be a noble champion of our First Amendment rights. I believe his actions to be wrong, plain and simple. The fact remains that in order for a government to function properly, not all information can or should be transparent. As a citizen, I willingly abdicate my right to know this information, trusting my government to make certain determinations for me. Voting with my feet, I can choose what country to live in, and what government to trust (granted, this is not possible for everyone, but the concept is clear). Thus, Assange’s actions don’t increase the global levels of democracy through transparency of government operations, in my opinion, but rather make the world a more dangerous place for me to live in, as a result of the increased knowledge of the US military’s vulnerabilities.
Situation: someone, anonymously, begins posting things about you on the Internet. Bad things, things that make you look like a scumbag. None of it is true, of course, but when a potential employer Googles you or grandma learns how to use Spokeo (tagline: “Not your grandma’s white pages.”) or one of the other dozens of data aggregators, you could be in very real, very big trouble, for something you didn’t do.
What can you do? Well, obviously, your first concern is getting the website to take down the material. So you should just talk to the website, right? Unfortunately, it’s not always that simple.
It’s true that many websites have mechanisms built in for reporting defamation. YouTube allows users to “flag” things like videos containing hate speech and user harassment. Facebook has similar flagging capabilities for hate speech and bullying. But what actually happens when you use these mechanisms to report your defamation?
Before we dive into this, let’s look at the legal basis for all of this.
What is defamation? The Restatement (Second) of Torts, § 559 defines defamatory communication like so: “A communication is defamatory if it tends so to harm the reputation of another as to lower him in the stimation of the community or to deter third persons from associating or dealing with him.” Simple enough.
But how is liability for defamation determined? § 558 of this Restatement states:
To create liability for defamation there must be:
a false and defamatory statement concerning another;
an unprivileged publication to a third party;
fault amounting at least to negligence on the part of the publisher [with respect to the act of publication]; and
either actionability of the statement irrespective of special harm or the existence of special harm caused by the publication
Okay, well that seems fair. I can haz lawsuit now?
Not so fast. The Communications Decency Act (CDA) of 1996 adds a twist, with § 230 (c), which says: “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” What does that mean?
Traditionally, publishers are held liable for content they publish—they have a responsibility to make sure nothing in it is defamatory, among other things. Distributors, on the other hand, are held to a much lesser standard of liability because they’re merely “passive conduits” as Jonathan Zittrain calls them, though some liability is still maintained. CDA § 230 (c) thereby says that no service provider (here: website) can be treated as either the publisher or original writer of content that someone else posted on that site. This is to encourage websites to screen themselves for content without suddenly jumping from weak distributor liability to strong publisher liability—thus, websites can filter their own user-submitted content without fearing if they miss something they’ll have a lawsuit on their hands. This in turn encourages free speech on the Internet, because if instead sites had to filter all potentially objectionable content, everything would be heavily censored. (The reason filtering of any sort is encouraged by Congress is the fear that a lack of filtering will lead to children stumbling upon pornography.)
So a website can’t be held to publisher liability standards for things its users post. But it still must adhere to weak distributor liability standards, right? Well, no. In Zeran v. America Online, Inc. it was found that the failure to mention distributors in § 230 (c) was a Congressional oversight and, in fact, such a website can’t be held liable even as a distributor. Something posted is entirely the poster’s fault.
So if you’ve been defamed, you can at least go after the person who’s been spreading lies about you on message boards, right? Well, maybe not. Barrett v. Rosenthal expanded on the Zeran decision, noting in addition that because the CDA makes no distinction between an “active” and a “passive” user, anyone posting anything online isn’t liable for it so long as they’re not the original poster. (The court here notes that at some point a line will have to be more clearly defined for when reposting hits the level where it constitutes its own original act of content generation, but because of the case, “we need not consider when that line is crossed.” To date, it still has not been defined.)
So the person spreading lies about you isn’t liable as long as someone else said it first, and the websites on which all of these people are posting the lies can’t be held liable either. You can only sue the original poster for defamation, and that’s that.
But surely websites are cooperative if you’ve got a real claim that someone is defaming you? Well, perhaps. Before we answer this, let’s look at the other reason a user-generated-content website would have its content filtered or removed: copyright.
The Digital Millenium Copyright Act (DMCA) of 1998 paved the way for copyright holders, in particular music and movie distribution companies, to strongly protect their copyright claims, even in an age when the spreading of such files on the Internet has become commonplace. If YaleLawTech Records holds the copyright for “Don’t Mess with that CSS,” a popular song that they’ve found has been illegally used as a catchy background to a YouTube video, YLT Records simply has to send a takedown notice, specified in the DMCA, to YouTube. YouTube even has a standard webform to fill out if you don’t want to go to the effort to hire a lawyer.
When it receives such a takedown notice, it is in the best interests of YouTube (and similar sites) to simply remove the allegedly copyrighting content, without any examination into the validity of the copyright claim. By removing the video, YouTube becomes immune to all copyright infringement liability according to the DMCA, without which it would be facing thousands of copyright infringement suits. If on the other hand YouTube chooses not to remove the content immediately, even if such inaction is justified, YouTube would be inviting lawsuits and thus legal fees that it could live without.
In short, if a website receives a DMCA takedown notice, it’ll take down the questionable material immediately, no questions asked, without worrying whether or not the material was actually infringing upon a copyright and the takedown notice was actually valid.
Comparing Copyright to Defamation
So a website will take down allegedly copyrighted materials immediately because of the safe harbor the DMCA grants it for doing so. Shouldn’t it do the same for defamation? Unfortunately, because of the clear protections of the CDA, most websites have very little incentive to do so. If an item defames you, the website hosting it is immune from all defamation liability and as long as it’s not actually harming business to keep the material up (like hate speech might). So what do different websites actually do?
On filing DMCA takedown notices, Facebook says: “We will make every effort to review your report as quickly as we can. So long as everything appears to be in order, we will promptly remove or disable access to the content. We will also notify the user and, if requested, provide your report to the user. We will terminate repeat infringers when appropriate.”
YouTube is famous for its quick responses to DMCA takedown notices. It has, as mentioned above, a copyright complaint webform which can be filled out in less than a minute. For mass claims, YouTube created a Content Verification Program, whereby copyright holders (read: record labels) can submit an application verifying that they are a copyright holder (which implicitly acknowledges that the standard copyright complaint webform doesn’t really check for one’s identity) and then use YouTube’s “industry-leading Content Identification and Verification Tools.” These tools essentially let copyright holders have YouTube automatically scan videos for copyrighted content and then automatically either implements predetermined actions to monetize, record tracking data on, or block those videos infringing your copyrights. With this, copyright holders no longer even need to find or alert YouTube to copyrighted content, they can simply sit back and have search spiders make them money.
YouTube’s Community Guidelines (themselves a section of the Terms of Service) says: “Things like … harassment … are taken very seriously. Anyone caught doing these things may be permanently banned from YouTube.” No timeframe, no standards, nothing.
YouTube, like Facebook, has a system of having users “flag” content as “inappropriate” and says only that its staff reviews flagged videos (no mention of comments, etc.) “24 hours a day, seven days a week.” Great.
MySpace seems to be behind the times in not having any automated webform for submitting DMCA takedown notices (their fastest method is by writing your own notice and emailing it to them). For further evidence that MySpace is behind the times, note that its second method of communication is “facsimile.” MySpace does not include a timeframe for how quickly they will respond to such notices.
Twitter also has an automated DMCA takedown notice webform. It also lists an email address that can be used for such complaints in the event the webform does not work. They don’t mention a timeframe for responses.
Twitter only responds to serious, violent threats and violations of personal privacy, period. Everything else, you should just block. No mention of timeframes for Twitter responses.
Flickr has, surprisingly, no clear DMCA takedown notice procedures. Instead, it has a link to a page on filing DMCA notices with Yahoo!, which lists an mailing address, phone number, fax number, and email address (in that order) to contact. No mention of a timeframe for a response.
Flickr uses Yahoo!’s Terms of Service, which only says users agree not to “‘stalk’ or otherwise harass another” as the closest thing to defamation. Flickr has a “report abuse” button to use for reporting this behavior, with no clear timeframe for a response.
Having no real procedure for this (as it’s not really an issue yet), it seems DMCA notices must be sent directly to another Google address. Copyright isn’t mentioned anywhere in its User Content and Conduct Policy. Based on anecdotal evidence Google has removed offending content in six days, after at least something of a conversation with the complainant (no auto-removal systems in place).
Google+ has “Report Abuse” links for what its User Content and Conduct Policy calls “violent or bullying behavior.” Libel, per se, isn’t mentioned. No idea of a timeframe for responses
As shown in the disparities between services’ treatment of DMCA takedown notices and claims of libel/defamation, websites are much more interested in protecting copyright claims, especially those of big companies, than in protecting the average person from libel. But we can’t blame these websites; their actions are a direct reaction to the differences in liability granted by the DMCA and the CDA. If we want to see change, this needs to be reflected in our laws. Should websites more strictly police alleged libel, or does that run the risk of encouraging censorship of free speech? Should websites put more effort into discerning the validity of copyright infringement claims, or does that disincentivize progress? However we stand, if we don’t agree with the system now we must reevaluate our legal policies because the implementations reflect the laws, and the laws are clear: copyright is protected at all costs from infringement, but not the reputation of the individual from defamation.