Author: bradevanrosen

Need Break Up Advice? – by “Heather R”

~ bradevanrosen ~ 2 Comments

google

Last year I was writing an email to one of my girlfriends at home. We hadn’t seen each other in a long time, so it was one of those three page long life-update type of e-mails. During the e-mail, I of course updated her on all the obligatory college-kid social life boy drama that had been going on the past few months. When she responded, it was in one of those handy dandy conversation threads that Gmail is kind of enough to provide right next to their insightful advertisements. I had previously been very impressed by their ads. Instead of “male enhancement” offers and incessant reminders about the latest World of Warcraft release, I was greeted by ads that seemed reasonably applicable to my life. It was kind of fun to imagine the key words that Gmail had picked up on to select merchandise especially for me. It seemed reasonable for them to parse my emails and pick up generic information about my consumer tendencies. Amazon and Ebay have been doing it for ages. (Users like me also bought what?!?!) This email, however, had nothing to do with me as a consumer. That afternoon I glanced over at the Gmail ads and was greeted by some particularly insightful advertisements: “Need Break Up Advice?”, “Your Ex will Beg you back!”, “Marriage Crisis Warning”, and “How to Stop a Break Up”. Of course, there were also “Popular Engagement Rings”, “Unique Style Wedding Ring”, and “Cheap Engagement Ring”. So apparently Gmail was rooting for this relationship. I will admit that I initially found this mostly just hilarious. It’s good to know that someone is on your side in a break up, even if it’s Gmail. Looking back on it this week, though, I realized just how much information about me Gmail can access.

When I was reading articles about Fourth Amendment issues relating to email, they kept on talking about the government petitioning for information from ISPs. It was a reminder that the information we are trying to protect from subpoena is already available to . . . a lot of people. Warshak v U.S ruled that a reasonable expectation of privacy extends to emails that would otherwise fall under the SCA’s lower level of protection. The government pointed to the fact that the terms of service of many ISPs permit those ISPs to monitor user activities to prevent fraud, enforce the TOS, or protect the ISP or others, or to comply with legal process. They claimed that if you use an ISP and the ISP may monitor what you do, then you have waived any and all constitutional privacy rights in any communications or other use of the ISP. Luckily, they weren’t successful. So, moment of exhale that the government can’t seize our email, but reading the decision just reminded me how much privacy I do give up when I use the internet.

I will admit I have never read a “terms of service”. Maybe that makes me grossly irresponsible, but I don’t think I’m alone in the practice. Yes, mostly I’m just lazy, but I also just see privacy invasion as inevitable. I use the internet . . . a lot. I make an effort to have reasonably secure passwords, I don’t give my credit card information to anything offered in blinking red font on the side of a website, and I don’t trust advertisements that pop up when I’m watching MegaVideo. Mostly, I try not to be an idiot and that’s about it. I try to keep someone from stealing my credit card, but I’ve thrown in the towel when it comes to Google reading my email. It’s all on their servers, and of course they have to have protection built in so that they can see information on those servers. I don’t read the small font that says they can, because I assume that every email provider will claim the same privileges.

We may have a right to privacy, but do we have any hope of attaining it? Do you we have to give up all privacy to use the internet? I feel like I do. I feel like the privacy invasion is baked into the internet, so I’ve stopped worrying about it. The onion’s alternative does not seem like too much fun. I’m interested in keeping my constitutional rights, lord knows that when I get nailed for insider trading, I’m going to want to keep those “They’ll never see it coming, let’s steal money and then take liquid ecstasy” emails to myself. Until then though, I’m just going to keep using the internet, assume that Gmail is reading my email, and hope that they offer sound advice about my love life.

Why Mens Rea Should Be Applied to Child Pornography Laws – by “Anna L”

~ bradevanrosen ~ 2 Comments

When I was a sophomore in high school, I turned on my computer one day and realized I couldn’t access the Internet. An error message appeared that said the FCC had shut down Internet access for our household. When we called the number listed on the error message, we learned that one of the computers in our house had been sending out thousands of pornographic images, and some of them included child pornography. After an FCC official examined all the computers in our house, we learned that the source of these images was my 11-year-old sister’s desktop computer. She never used the desktop computer because it was slow and her laptop was faster. Some Russian hacked her computer and used it to distribute large amounts of pornography. So, my sister was technically in possession of child pornography.

In Flores-Figueroa v. United States, the United States Supreme Court examined a pivotal case involving mens rea. The petitioner, Ignacio Flores-Figueroa, was an illegal immigrant who worked in the United States. When his employer asked for his social security number, he made one up. It turned out that the social security number he wrote belonged to someone else, and he was charged with identity theft (he was also charged with illegal entry into the United States and misuse of immigration documents, to which he pleaded guilty). In 2006, a federal grand jury found him guilty of identity theft. Ignacio Flores-Figueroa’s lawyers argued in appeal that he was unaware that the social security number was someone else’s. The Eighth Circuit upheld his original sentence, arguing that knowledge of whether the number belonged to someone else or not was irrelevant. The Supreme Court overturned the Eighth Circuit’s decision. It held that the government has an obligation to prove that Mr. Flores-Figuerona intended to commit identity theft. Justice Bryer’s majority opinion emphasized that in criminal law, courts apply mens rea to every statute. Bryer wrote, “to the extent that Congress may have been concerned about criminalizing the conduct of a broader class of individuals, the concerns about practical enforceability are insufficient to outweigh the clarity of the text.” The Court’s findings in this pivotal case are inconsistent with current laws about child pornography.

In Osborne v. Ohio, the United States Supreme Court explained that laws making possession of pornography a crime, regardless of the circumstances, were constitutional. It is terrifying to think that you might commit a crime without the intent to do so or even knowing that you committed a crime. Laws regarding child pornography have no clause about intent to receive or intent to distribute it. This has troubling consequences. People who didn’t intentionally acquire porn could be punished for having it. A teenager who receives a picture from his girlfriend without requesting it could be prosecuted. Someone who receives an email with child pornography in it would be in violation of the law. Someone who is trying to download a video on Limewire that has a fake label and turns out to be child porn could be prosecuted.

My sister wasn’t charged with possession of child porn, because prosecutors use discretion when deciding who to prosecute. But due process rights should not be contingent upon the discretion of a prosecutor. The Supreme Court decided long ago that the right of every citizen to due process overrides the risk that the guilty should go free.

Of course, it is sometimes difficult to prove intent to possess the pornography. The result of changing the law to require intent to possess child porn (or perhaps even applying a lower level of mens rea to child pornography, like negligent possession) puts the burden on prosecutors to prove beyond a reasonable doubt that people in possession of pornography intended to be in possession of it. The result is that some people who intentionally acquired child porn will walk free. Still, this is a price we must pay. We should not let prosecutors be the arbiters of who is committing egregious crimes and who is not worth prosecuting. Even though it may be difficult to prove mens rea, it should still be the essential element of any criminal act.

In the Spirit of Protecting the Victim – by “Jonathan G”

~ bradevanrosen ~ 2 Comments

Swiffer LoveIn New York v Ferber, the Supreme Court unanimously held that the First Amendment right to free speech does not prevent states from restricting the distribution of child pornography. Indeed, in this uncontroversial decision the Supreme Court held that the “psychological, emotional, and mental health of the child” is of such paramount importance that child pornography need not even be deemed obscene per the test established in Miller v California for regulation to be justified. Public sentiment favoring child pornography laws as applied to adult predators remains strong. Indeed, public sentiment on the issue is so strong that a “my cat did it” defense can seem more likely to succeed than challenging that the behavior is wrong. More controversial however has been the recent application of child pornography laws to protect children from themselves.

Public awareness of “sexting” can perhaps be traced back to the infamous “Swiffer Girl” incident, which involved an eighth grade girl at the Horace Mann School in New York City. The girl filmed herself in three videos engaged in a variety of sexual acts with a Swiffer mop and sent them to a male classmate on whom she had a crush to show him what he was missing. Her classmate, more amused than stimulated by the videos, proceeded to forward the videos to his friends and soon the videos had spread like wildfire, first among the private school elite of New York City and then eventually nationally. The drama that ensued was so severe that the girl was forced to drop out of Horace Mann and move to Florida.

While “Swiffergate” as it became known should have been sufficient evidence of the dangers of “sexting” it seemingly had no such effect. Indeed, according to a survey conducted by the National Campaign to Prevent Teen and Unplanned Pregnancy, one in five teenagers indicated that they have sent or posted naked pictures of themselves. While various educational campaigns such as “Think Before You Click” have been created, police in Greensburg, PA and other localities have taken matters into their own hands and charged teenagers with crimes under the very same child pornography laws meant to protect them. Indeed, while Rick Salomon did not violate any pornography laws by releasing 1 Night in Paris (he did perhaps violate other laws as evidenced by Paris Hilton’s successful civil suit), a child who distributes videos or photographs of sexual acts involving other children can technically be charged as having violated child pornography laws. Interestingly however, the public reaction has been decidedly against this application of child pornography laws.

Despite public opposition, certain applications of child pornography laws to charge children are consistent with both the letter and the spirit of the laws. The “spirit” of child pornography laws that punish dissemination and possession is to protect the child depicted in the pornography (the “victim”) by punishing the distributor or possessor (the “offender”). The application of child pornography laws in the Greensburg, PA case was inconsistent with the “spirit” of the law insofar as it punished, rather than protected, the “victim” creating a sort of “double-victimization” akin to charging runaway children forced into the sex industry with prostitution. Similarly, charging the boyfriends with possession did nothing to protect the “victim” insofar as there was no evidence that they were active instigators, rather than passive recipients. While it is difficult to establish a brightline standard, charging children who have sent a couple of photos of themselves to a couple of people with disseminating child pornography does not make sense.

The application of child pornography laws against children can however be consistent with both the letter and spirit of the law as in the case of Philip Albert of Orlando, Florida. In this case, Albert, after breaking up with his girlfriend, decided to get back at her by maliciously mass e-mailing photos she had “sexted” him. Punishing Albert (the “offender”) is clearly consistent with the objective of protecting his ex-girlfriend (the “victim”). While his ex-girlfriend undoubtedly put herself in a compromising position by “sexting” in the first place, this does not excuse Albert’s behavior any more than a mugger’s behavior would be excused by the fact that his victim opted to take a stroll in a dangerous part of town late at night. Similarly, the fact that Albert is himself a child does not excuse the behavior insofar as we punish children all the time for violating the law (though it might warrant some leniency).

While we should undoubtedly continue campaigns to educate children, so they don’t put themselves in compromising situations in the first place, punishing children who maliciously disseminate child pornography is justifiable as well. Indeed, in the spirit of protecting the victim, charging children who maliciously disseminate child pornography is necessary. If the law were applied as such, “Swiffer Girl’s” crush may have thought more carefully before maliciously forwarding the videos and “Swiffergate” may have been a private learning opportunity, rather than a national life destroying event.

Sexting Offenders? – by “Paulo C”

~ bradevanrosen ~ 2 Comments

Sexting

The U.S. law prohibits the possession, dissemination, and possession of child pornography (18 U.S.C. §2252). If a politician makes a speech upholding this law, most citizens would applaud him. Children must be protected to the fullest extent of the judicial system, right? But what if the socially and criminally condemned predator were a 14-year-old girl who decided to move to the next step in the relationship with her boyfriend and started to trade nude pictures via text message? An arrest of a teenager has already been made in Michigan, and similar cases are taking place in different parts of the USA. Apparently, the new “cool thing” for teenagers is not holding hands in the movies or exchanging hidden kisses at school, but rather engaging in what is called “sexting”, a practice that may seem inoffensive at first (after all, it’s the hormones that are talking) but that could have tragic consequences.

In a survey by the National Campaign to Support Teen and Unplanned Pregnancy together with CosmoGirl.com, more than 1,200 teenagers were asked if they have already sent/posted nude or semi-nude pictures or videos of themselves. The result confirms the concerns of moms, dads, and educators around the country: 1 out of 5 has already engaged in some kind of sexting, being the rate higher for teen girls (22%) than young boys (18%). It’s obvious why a father does not want his daughter to take nude pictures of herself and send them to her boyfriend. Nevertheless, what’s the real problem with sexting? One could argue that sexting provides a safe way for teenagers to discover their sexuality without risking STDs or unwanted pregnancy. It’s pretty harmless, isn’t it?

Jessica Logan’s case tells us the contrary.

Last year, Jessica, an eighteen-year-old girl from Ohio, committed suicide some months after her ex-boyfriend had sent her nude pictures to other girls in their high school. No longer able to stand the vicious comments she would constantly hear of herself, she decided to hang herself in her bedroom. In a NBC News report, Cynthia Logan, Jessica’s mom, declared that her daughter “was being attacked and tortured.” In grief, she says, “I just had a scan of the room, her closet doors were open. I walked over into her room and saw her hanging. The cell phone was in the middle of the floor.”

The horrific outcome of this case tells us that the problem of sexting is not the action itself, but what might happen after that. It seems that as soon as girls and boys have nude pictures of each other, a lovely, healthy relationship may turn into one based upon dominance, subordination, and manipulation. Tragic cases usually occur right after teenagers break up: a sense of vengeance seem to take over resentful girls and boys who make the atrocious decision to spread their partner’s pictures on the Internet or mass mailing them to other people.

The law prohibiting child pornography is being invoked. Teenagers are being charged with manufacturing, disseminating or possessing child pornography – and many people are freaking out because the label of sex offender seems too harsh. Florida cyber crimes defense attorney David S. Seltzer, for example, does not believe that our child pornography laws were designed for regulating sexting. Commenting on the severity of the sentences, he writes: “A conviction for possession of child pornography in Florida draws up to five years in prison for each picture or video, plus a lifelong requirement to register as a sex offender.” How will these teenagers go to college with “sex offender” written in their record? How will they explain in a job interview why they had been charged with a federal felony? These teenagers are paying with their lives for a silly mistake they made in following a fad.

We don’t want teenagers to live with this stigma. Instead of locking them up, we should remove the “sex offender” label from their criminal record and have them spend some hours of community service. In addition, parents and teachers should alert their children about the risks of sexting. ConnectSafely.org, for instance, has some tips to prevent sexting, such as open dialogue with parents or trusted adults. The rigorousness of child pornography law should be invoked in cases that involve viciousness and criminal intent (e.g. Jessica Logan’s case), not when teenagers impulsively send nude pictures to their boyfriend or girlfriend.

Sexting can be harmful or harmless. The law must be able to differentiate one from the other.

The Power of Propaganda – by “Brian S”

~ bradevanrosen ~ 1 Comment

Questions still remain about how aggressive the Chinese government is going to get in their crusade to censor all information available to their citizens (although, in an ironic twist of hypocrisy, they have recently accused Google of censorship).  The word “brainwash” comes to mind when one thinks of the behavior of the Chinese government towards its citizens; clearly the government’s goal is to keep their citizens from harboring any negative beliefs about their country, or knowing anything about their country’s dark past.  In America, where Glenn Beck calls the President a racist on national television and refuses to apologize, and where some 40% of the country agrees with him, this seems absurd at first blush.  But upon further reflection, one thing stands out: people believe what they are told.  People believe all sorts of political propaganda, for example, regardless of origin.  If the only images presented to the Chinese population are ones of a benevolent government, how will they know they are being lied to?  1984 comes to mind, naturally.

That said, will China bother to maintain their censors? For now, it seems they will.

Ways of bypassing the internet censorship include Tor and UltraSurf.  These programs re-route traffic through external IPs to avoid censors.  It is within the Chinese government’s power to block these IPs, but until recently they had not done so.  Tor was blocked in the days leading up to China’s National Day of October 1st, but UltraSurf remains unblocked, although it is apparently fairly easy to do so. Why?  One imagines China is aware of the tool, but perhaps the threat is sufficiently small.  A few thousand people among China’s billion-plus are hardly worth bothering about.  With UltraSurf available, users may not have incentive to find more devious ways to get around the censorship, which is exactly the sort of behavior the government wants to discourage.

As long as the truly objectionable sites are blocked to the public, and relatively few users are bypassing the censors in the first place, China need not worry. For example, China recently blocked a page called the Berlin Twitter Wall, a site which intended its users to share their thoughts and memories of the fall of the Berlin wall, but turned into mass criticism of the so-called Great Firewall of China.  But a small percentage of internet users use UltraSurf.  A very small percentage would read or post on a site like this.  The overlap must be essentially nil, and as long as it’s sufficiently small, it can cause only limited harm.

In fact, fostering a minority opinion is not even so bad for China.  One would not go so far as to deem it a goal of theirs, but having a minority opinion appear weak can bolster support for the majority opinion.  To this end, the Chinese government does need to ensure that the majority opinion lies in their favor, or at least seems to. China is effectively paying people to post opinions backing the government to make it appear as if most people support the government. Then, of course, more may be swayed and recruited to the bogus cause: the strategy is “fake it ’til you make it.”  And if enough lies are spread to enough people, it may be difficult for the people of China to know what to believe, regardless of how aware they may become of the other (true) side of the story (i.e. real history).  And if that happens, censorship is no longer necessary – much like the way propaganda works in the U.S. today.  Is Obama a hero or a villain?  It’s not clear.  Perhaps the Chinese government will find similar murky ground as a stepping stone on its quest towards a golden public image.

The Devil’s Advocate – by “Reynolds H”

~ bradevanrosen ~ 1 Comment

Amongst Americans, internet freedom, is considered a basic human right.  The ability to access any information that is desired, to publish any free thoughts on any topic, and to freely criticize the authorities that govern are all written into a law which protects these freedoms.  It’s been instilled in everyone in our generation since the first stages of our education: freedom of speech.  But is the freedom of speech, especially via the internet, truly a basic human right or is it merely a luxury right, which Americans have become accustomed to so much that it is perceived in the same light as shelter, water, health, and nourishment?  Americans often express this desensitization to other scenarios by exclaiming that all countries policies should promote freedom in all aspects and citizens of those countries should expect no less than the same freedom grated to citizens in the United States.  The United States’ active encouragement of the rapid progression of freedoms in China, especially internet freedom, may be misguided, not allowing China to reach the steps necessary for the developmental path to achieve the level of freedom comparable with the United States.

The reason that citizens of the United States are able to enjoy the freedom of speech which they are guaranteed by law today is the stability of the social and government institutions within the country.  The stabilization of the government structure allowed citizens of the United States to trust that their government could survive and therefore be able to protect its citizens, leading to the stabilization of the social institutions, which then allowed for the cascade effect of the evolution of rights.  The government structure of the United States has had structure since its creation in 1776, which allowed for the normal development leading to the creation of a code of basic rights accepted into law, and eventually to the current system of freedoms enjoyed in the US.   From a more modern perspective, to a certain extent, the United States has enjoyed government stability since the end of the civil war in the 1860s, with little to no major governmental changes happening since then.  In this time, there have been major advances in the civil right of citizens, from the ending of slavery to the equal rights among men and women to the equal rights among race, with only recently (past 40 years) having achieved equal basic human rights for all citizens.  These advances in human rights came by a strong social approval across the nation and a banding together of people to enact change in the government, social disorder was used as a tool to create change in the laws governing the society.  This change, however, was only possible because of the strong structure of the government and the stability it held, allowing for large swings of social disapproval and disorder without the destruction of the country’s government structure.

China lacks the social order and strong government structure needed for the accelerated development of the human rights.  The People’s Republic of China (PRC) did not come into existence in its present form until the end of the 1950’s with the ending of the Chinese Civil War.  When it did assume power, the PRC inherited the poor governmental, social, and judicial institutions from the pre-civil war governance.  Even today, China is still tackling the attainment of the basic human rights for the majority of its citizens and the creation of a stable governmental structure.  Therefore the main goal of the PRC is to create and maintain social order and to build the government structure.

Recently the NY Times published an article about the proposed adoption of a registration requirement which would require users to register their real names, identification numbers, and information to access and comment on new sites.  When asked to comment, officials and state-connected academics in the information security field, argued that mandatory controls are necessary to help subdue inflammatory attacks, misinformation and other illegal activity deemed to endanger social order.  In another NY Times article, officials were asked to comment on the increase in proposed internet censorship and monitoring during 2009, a year which commemorates numerous anniversaries marking advancements and socially revolutionary events.  Reporters indicated that China had established a high level committee completely devoted to the maintaining of social stability.  Government censors have blocked over a thousand websites, closed liberal forums and blogs for, blocked access to YouTube, Facebook and Twitter, and cut off Internet service in locations with serious social instability, notably in the Xinjiang region of the west after deadly clashes between different ethnic groups, Chinese officials have defended that internet shutdowns were based on the grounds of national security.  The trend here is evident.  Although considered wrongful according to the western bias, one way of maintaining social order is internet and information censorship.  By eliminating sources which criticize the government, invoke social unrest and riot, and promote rebellion, the PRC government is trying to strengthen the internal social order which is necessary to progress to its steady stabilization.  To put it into plainer words, China is trying to get everyone on the same page, so that they can move on to the next step.  This may seem like backwards primitive thinking from an American biased perspective, but people must understand that the government responsibility is to provide protection for its citizens and in China’s case, that protection may come at the price of some of the freedoms of the citizens.

Once this social stability is steady, it allows for the creation of a better government, then for the stability of that government, thereby finally allowing for the social disapproval necessary to enact change in that government.   But if that social stability is never achieved, the cascade of processes leading to change cannot start. Plain and simple, despite the repression of the freedoms of the public, China may be doing what is best for their country for the long run.  Repressed freedom, and thus internet censorship may be the “evil means” to the beneficial end of the furthering of freedoms in China.

Censorship and Free Speech in China and Hong Kong – by “Charlotte M”

~ bradevanrosen ~ 2 Comments

Growing up in Hong Kong, one quickly learns how fortunate we are to be able to enjoy freedom of speech, and the lack of censorship. It is one place where you still do see China’s method of “one country, two systems”: while in Hong Kong, we have access to uncensored internet and freedom of speech, China is not privy to the same access.

Access to uncensored internet doesn’t just make a country a better place by itself; instead, it provides its citizens with the tools and information they need for self-improvement. Take google.cn’s censoring of images when you search for “tiananmen square.” If, say, you’re a curious adolescent living in China, and you have taken an interest in China’s history, and particularly the Cultural Revolution, you might want to do some research about it. However, the information you will glean from an internet search (or likely from any sort of research you might undertake, as I have a sneaking suspicion that books painting the events of Tiananmen Square in a less-than-flattering light have been censored as well) will not give you an accurate picture of the events that occurred. How can one properly their history, or the current state of things, if attempts to learn about them are quashed by the government? Shielding the people from information about their own past, or their families, doesn’t protect or help anyone. Instead, it helps the Chinese government to deny their past, and instead of helping their people, it hurts them.

Hong Kong, however, is different. While google.com is redirected to google.com.hk, you can opt-out of the redirection, and search using the “normal” version of Google, thanks to the relative lack of censorship in Hong Kong. While just north Hong Kong, in China, you will not find information about Tibet’s desired cessation from China, Hong Kong enjoys enough freedom to have numerous “Free Tibet” protests.

However, Hong Kong is truly just a vestige of colonial rule. While the Sino-British Joint Declaration stipulates that the people of Hong Kong will enjoy the same rights and freedoms as they did under British colonial rule for at least 50 years after returning to Chinese rule in 1997, there is strong evidence that these freedoms will not extend beyond 2047. China’s influence, and desire to manage it’s people, is simply too great to allow the people of Hong Kong, who are of so much important to the surrounding region and to the world, to be so influenced by outside sources. Already, we have seen evidence of this;: in 2002, the government proposed Article 23 of the Basic Law, which would have prevented treason and subversion against the Chinese Government. This was met with great opposition, and because Hong Kong still maintains a separate (although highly influenced by China) government, the Article was not passed. Had it been passed, however, one would have seen changes to the internet similar to what is seen in China– very little that makes the Chinese government look bad.

Lifting the Veil of Anonymity: Accountability in the Digital Age – by “Andrew C”

~ bradevanrosen ~ 2 Comments

Skanks in NYC

In February of 1996, John Perry Barlow issued a rather flowery piece of prose that he called “A Declaration of the Independence of Cyberspace.”  In this Declaration, Perry envisioned an Internet governed by “ethics, enlightened self-interest, and the commonweal” over which the governments of the world would have neither “moral right to rule”, nor “any methods of enforcement.”

Today, Perry’s piece is seriously somewhat dated.  If there’s one thing the last 13 years have shown it’s that, while the internet does in fact have plenty of world-changing applications, it is far from a utopian virtual dimension.  Any independent observer of the internet today would be undoubtedly amused by the notion that, if left to their own devices, internet users will be motivated by some higher sense of ethics.  Rather, it has become increasingly obvious that no amount of idealistic philosophy will change the baser instincts among the less socially inclined among us.  Actually, it would seem that the relative anonymity of the internet has served to increase the willingness of certain people to post hateful, horrible things.

Ironically, that trend plays perfectly into Barlow’s claim that the US government has no right and no enforcement mechanisms with which to control that which happens on the internet.  Quite frankly, yes it does, and yes it can.  The jurisdiction of the US judicial system undoubtedly extends to comments made in cyberspace, and in recent years, users posting anonymously on blogs and forums have come to realize more and more that, while the Communications Decency Act protects providers of online internet service from defamation lawsuits, it does not protect the actual posters of defamatory comments.  As such, people who thought they were posting anonymously on the internet have increasingly found that they can in fact be held responsible for their actions.073008cohen24JD

One of the best examples of this phenomenon is in the case of Liskula Cohen (pictured right), who in January of 2009 sued Google in order to uncover the identity of the owner of the blog “Skanks in NYC,” which was operated by Google.  Cohen, who is a fashion model, had discovered that the anonymous writer of the blog had posted numerous defamatory comments, calling Cohen a “skank,” an “old hag,” and a “a psychotic, lying whore.”  On August 17, 2009, Judge Joan A. Madden of the Supreme Court of the State of New York issued an opinion ordering Google to reveal the name of the blogger.

The court, in a fabulous argument involving the American Heritage Dictionary definition of the words “skank” and “ho,” stated that the descriptions by the blogger of Cohen as a “skank” and a “ho” constituted an assertion that Cohen was sexually promiscuous.  The court ruled that therefore these statements were not opinions but a statement of provable facts.  As such, the court reasoned, if the facts posted by the blogger could be proven to be incorrect, they could most certainly be construed as defamatory to Cohen’s character.  The court essentially ruled that Cohen had enough of a defamation case against the anonymous blogger that it was necessary and proper to compel Google to reveal the blogger’s name.  As such, Cohen is now suing the blogger, who turned out to be 29 year old fashion student Rosemary Port for $3 million.  Not surprisingly, the two had encountered each other before in the fashion scene, and had reportedly had an altercation involving Port’s ex-boyfriend.

In her ruling, Madden rejected the idea that blogs “serve as a modern-day forum for conveying personal opinions, including invective and ranting,” and cited the opinion of a Virginia Court, which stated that “in that the Internet provides a virtually unlimited, inexpensive, and almost immediate means of communication with tens, if not hundreds, of millions of people, the dangers of its misuse cannot be ignored” and that “the protection of the right to communicate anonymously must be balanced against the need to assure that those persons who choose to abuse the opportunities presented by this medium can be made to answer for such transgressions.”  In this argument Madden acknowledged the vast potential of the internet but at the same time asserted that it cannot serve as a lawless abyss of anonymity.  Madden’s argument was that blogs cannot be considered exempt from defamatory lawsuits and that individuals must be held accountable for their actions online.  At the same time though, Madden argued that it is necessary to strike a balance between accountability and the protection of anonymous free speech.

And indeed, this issue is certainly a question of balance.  For her part, Rosemary Port is suing Google for $15 million for revealing her name, claiming that she is being persecuted for her opinions and that Google violated her privacy by revealing her identity.  In the suit Port’s attorney claims that her Constitutional right to anonymous free speech under the first amendment was violated.  In his argument, Port’s attorney compares Port’s anonymous “Skanks in NYC” blog to the Federalist Papers, which were written under pseudonyms, and upon which the very foundation of our society was based. This connection is dubious.

In the end, this issue is a question of where one draws the line.  Is it necessary for global democracy and free speech that Rosemary Port be allowed to call Liskula Cohen a whoring skank without any consequences? I think most people would say probably not.  It’s hard to argue that protecting people like Port from defamation lawsuits was what the Founding Fathers had in mind when they wrote the First Amendment.  It is clear that internet users like Port certainly are not motivated by Barlow’s notion of “ethics, enlightened self-interest, and the commonweal.”  Without a doubt, there are individuals who use the screen of online anonymity to say hateful, disgusting things that can be incredibly harmful.  The Skanks in NYC case does appear to demonstrate however that anonymous posters online are becoming decidedly less anonymous as time goes on.  It is possible that, in the end, the posters of morally reprehensible content online will be just as immediately identifiable and accountable as those who perform morally reprehensible actions in the real world.  However, there is a certain truth to the fact that the internet has provided a vital platform for anonymous free speech and the dissemination of information.  Without a doubt, the internet has provided a way for those who are oppressed or censored to both receive information and to spread the news of their plight. The tradeoff between anonymity and accountability, while necessary to a certain degree, definitely lies on a very slippery slope.  It remains to be seen how far down that slope we as a society are willing to go.

Two Sides, One Coin: Free Speech and Web Vigilantism in China – by “Chuen-Yee C”

~ bradevanrosen ~ 3 Comments

Vigilantism

One of the most well known cases of web vigilantism in China occurred earlier this year when Jiang Nan jumped 24 floors to her death. Before she committed suicide, she wrote multiple blog entries describing the details of her husband’s affair. Chinese netizens, eager to see justice served, tracked down and publicized photos and personal information of her husband and his lover. Jiang Nan’s husband, Wang Fei, an advertising agency executive, suffered extensive invasion of his privacy and was subsequently fired from his job.  Ironically, this alarming example of a peer-surveillance state in action seems to have its roots in the exercise of free speech.

Despite the staggering changes toward modernization that have occurred, Chinese value systems have yet to modernize in line with the country’s evolving posture toward capitalism and its cooperation with the global economy. There are now an estimated 137 million Internet users in China, and the Internet has had a profound effect on the Chinese way of life and the predominantly traditional values it has embodied for over two thousand years. However, the explicit confrontation between distinctively Chinese values and the Western values of free expression and the free flow of information that drive the Internet has resulted in a dramatic conflict.

Web vigilantism is a common problem rife in all societies with access to the Internet, but is a particularly alarming phenomenon in East Asian countries, especially China. On social networking sites, blogs, and other Web 2.0 platforms, destructive groups can publish sensitive information, from private matters to personal information. These groups often threaten forms of physical violence and send damaging statements about victims to employers and manipulate search engines to highlight those statements for business associates and clients to see.

Incidents of “web lynching” and the “human flesh／renrou search engine” 人肉搜索 in East Asian countries, most notably China, demonstrate the underpinnings of a larger social and cultural problem. Acts of vigilantism on the Internet have destroyed the reputations of victims, corroded their privacy, and impaired victims’ abilities to participate in online and offline activities. The benefits of the Internet have left their mark especially in the realm of economic and financial development, but social harm has resulted from the sudden explosion of traditional values operating on a mass scale. While Confucian principles have deeply shaped both the Chinese hypersocial environment and sense of justice, the Internet has enabled transcendence of traditional social roles and a cost-effective means to collective action. These factors have combined to contribute substantially to the trend of extreme Internet vigilantism, digital witch hunts some have dubbed the “New Red Guard.”

The Chinese government’s “pro-morality” stance has not deterred vigilantes and may indeed have worsened the situation. At the same time, most of the government’s efforts to promote “social harmony” on the web lay in mass censoring and filtering mechanisms—efforts that mostly center around limiting the freedom of political speech. In protecting Chinese citizens from each other would it be better to implement a more benign approach by imposing checks through tradition and thought, or does the answer lay in restructuring social norms through the law? China’s unique history and social culture mean that traditional Western approaches may not work and could even worsen the situation.

Wang Fei recently won his suit against the blogger who released his wife’s diary online and the website that published his personal information. This verdict sets an important precedent for future online vigilante victim cases, but China’s current legal system is only able to help victims attain meager compensation on a case-by-case victim; Wang Fei’s total awards totaled less than $1,000USD.  While laws could be reformed to adequately address victim compensation, efforts to control Internet vigilantism in China should also reflect a commitment to reforming citizen behavior online. In order to structure an appropriate solution that minimizes attacks on individual citizens while promoting the use of renrou as a check on political corruption , Chinese legislative and political powers must understand the relationship between China’s hypersocial environment, Confucian and traditional values, and the Internet’s influence on group behavior.

Anonymous Speech: Harmful Enough for Regulation? – by “Marcus M”

~ bradevanrosen ~ 1 Comment

The Internet offers users the possibility of anonymity, which allows people to act elusively and namelessly across its vast series of tubes. While online, individuals can use aliases to mask their identities or even to design entire virtual “second lives.” While users do leave their IPs behind, they trust that host sites will safeguard this information, which can be used to reveal their true identities. The power afforded by the Internet’s identity-obscuration has a variety of effects on speech.

One of these effects has been to encourage the expression of otherwise detestable speech. Of the belief that their identities will not be uncovered, individuals may feel enabled by their online anonymity to post material they deem too offensive, provocative, or legally dubious to express in the real world. This effect has manifested itself in countless instances of online hate speech and cyberbullying, both of which can cause tangible harm to their targets. This potential for real harm raises the following question: Can the veil of anonymity enjoyed by Internet users be justifiably removed for the sake of a citizen’s protection?

This is the question posed to the Cook County Circuit Court in a recent case regarding “deeply disturbing” comments made online about the 15-year-old son of Buffalo Grove, IL Village Trustee Lisa Stone. Under the alias “Hipcheck 16,” an individual posted the comments in response to an article written in the Daily Herald on April 6, the day before Village Board elections. Stone went to court to ask Judge Jeffrey Lawrence to give her the identity of Hipcheck 16. The judge did acquire the user’s identity, but he did not relay it to Stone, at least not yet. On November 9, Stone’s attorneys and the anonymous poster’s attorney will present their arguments before the judge, who will then decide whether or not to provide Stone with Hipcheck16’s identity.

ACLU spokesman Ed Yohnka weighed in on the case, saying that anonymous speech is an integral part of our society, and must be protected. Noting the anonymously published texts by Benjamin Franklin and Thomas Paine, Yohnka pointed out the importance of anonymous speech in the early stages of America’s independence. The case would have broad application to online speech rights, since few cases like it have appeared in American courts, and could possibly restrict the ability of citizens to speak anonymously.

But it seems that this point ignores the capacity of the law to draw a distinction between acceptable and unacceptable anonymous speech. The type of speech Yohnka wishes to protect would be legally protected – however nasty, political speech by definition targets the state and its occupants, not fellow private citizens. There do already exist protections for anonymous speech, but these do not cover defamatory and other speech considered illegal in normal circumstances.

The various contributing lawyers seem to neglect Stone’s main concern in seeking Hipcheck16’s true identity. She sees the case as primarily about the “need to protect children from being attacked on the Internet.” This bring to mind the incident last year of a mother posing as a teenage boy on MySpace, who taunted a 14-year-old girl to the extent that she committed suicide.

While certainly an extreme example, this incident demonstrates to me the necessity of at least some laws governing how individuals interact with one another on the Internet. When there is significant, tangible harm done unto a person by another user, I think there should be punitive action taken against that user, beginning, of course, with his identification. The policy behind this would have to be written sufficiently clear as to not deter anonymous speakers in general. Otherwise, the anonymous political speakers whom the ACLU seeks to protect will suffer. What a surprise: a big obstacle is determining the appropriate language for a law.