Tag Archives: free speech

Some good news on civil liberties

Posted on by at 9:11 am
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National Security Letters are warrantless demands for information that have one particularly bad characteristic. The NSLs specifically prohibit the recipient of the NSL from notifying persons whose information is being sought. Essentially, the recipient of the NLS is subject to a gag order, which is said to be not subject to appeal.

However, a Federal district court judge in California has ruled all NSLs unconstitutional.

U.S. District Judge Susan Illston ordered the government to stop issuing so-called NSLs across the board, in a stunning defeat for the Obama administration’s surveillance practices. She also ordered the government to cease enforcing the gag provision in any other cases. However, she stayed her order for 90 days to give the government a chance to appeal to the Ninth Circuit Court of Appeals.

“We are very pleased that the Court recognized the fatal constitutional shortcomings of the NSL statute,” said Matt Zimmerman, senior staff attorney for the Electronic Frontier Foundation, which filed a challenge to NSLs on behalf of an unknown telecom that received an NSL in 2011. “The government’s gags have truncated the public debate on these controversial surveillance tools. Our client looks forward to the day when it can publicly discuss its experience.”

Secrecy prevails over Constitution

Posted on by at 8:26 am
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The Supreme Court has ruled that Americans subject to surveillance under the Foreign Intelligence Surveillance Amendments Act of 2008 have no standing to challenge the constitutionality of that law. The decision was a 5-to-4 vote, strictly divided among the conservative justices and the rest.

Because surveillance under the law is treated by the Federal government as secret, there is no way for a citizen to prove that they have been spied upon. So a major assault on free speech and privacy is scuttled by the Supreme Court.

The ACLU’s Jameel Jaffer said:

Justice Alito’s opinion for the court seems to be based on the theory that the FISA Court may one day, in some as-yet unimagined case, subject the law to constitutional review, but that day may never come. And if it does, the proceeding will take place in a court that meets in secret, doesn’t ordinarily publish its decisions, and has limited authority to consider constitutional arguments. This theory is foreign to the Constitution and inconsistent with fundamental democratic values.

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Whatever happened to the First Amendment?

Posted on by at 5:28 pm

Earlier today it was discovered that if you visit the United States Patent and Trademark Office, and connect your computer or phone to their accessible wifi network, you would find some interesting sites blocked.

We checked and found that the USPTO blocks access to a number of groups that have followed SOPA and the TPP intellectual property negotiations, particularly those critical of the USPTO positions on intellectual property issues. Among the NGOs that were blocked were aclu.org, cdt.org, citizen.org, eff.org, healthgap.org, keionline.org and publicknowledge.org. Among the sites NOT BLOCKED were the industry lobby groups BSA, MPPA, RIIA, and PhRMA.

After these blockages were brought to the attention of the USPTO, they cleared the block. But since when does a Federal government agency assume the right to block access to political (or any other non-obscene, non-criminal) speech? Having provided Internet access to visitors, a governmental agency assumes the responsibility to apply the free speech requirements of the First Amendment.

Hopefully, an investigation will follow.

Congress questions domain name seizures

Posted on by at 8:47 am

The Federal government, acting as a private security force for the entertainment industry, has been seizing domains (i.e., shutting them down without a trial) based on claims of intellectual property violations. There is a complete lack of due process in such seizures which are actually direct attacks on free speech.

Finally, a group in Congress is demanding answers from the Obama Justice Department.

The Representatives’ letter focused on the case of former hip hop website Dajaz1. Dajaz1’s domain name had been seized for over a year, despite evidence that the website had lawful material, and that “many of the allegedly infringing links to copyrighted songs, and specifically the links that were the basis of the seizure order, were given to the site’s owner by artists and labels themselves” including Kanye West, Diddy, and a vice president of a major record label.

Adding to the injustice, the government refused to cooperate with Dajaz1’s attorneys for months, and sought numerous extensions of the seizure authority in secret. When the court records were finally released, it showed that the government was waiting on the RIAA to evaluate a “sampling of allegedly infringing content” and respond to other “outstanding questions.” While the RIAA fiddled, Dajaz1 lost the right to speak and the public lost its right to read what was published there.

Finally, after a year, control over dajaz1.com was handed back to the owners with no apology, and no explanation. It is disturbing enough that DHS has been effectively acting as the tax-funded hired gun of the content industry, but, even more horrifying, it censored the wrong targets, for no good reason, for a year.

You can read the full letter here. And you can read about another similar case, in which the Federal government delayed (18 months) a decision to dismiss the case, here.

This behavior has to stop.

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Wear a t-shirt, lose your seat

Posted on by at 10:44 am

From Jonathan Turley comes yet another TSA story. It seems that a passenger was wearing a t-shirt that mocked the TSA. The TSA and/or Delta Airlines blocked the passenger and he wife from flying because they said the t-shirt made TSA and Delta employees “uncomfortable.”

The shirt logo makes a play on the TSA’s logo, with the eagle holding untied shoes and pouring out a bottle of liquid. Around the seal, it says, “Bombs ZOMG/ZOMG terrists,” and “Gonna kill us all ZOMG ZOMG alert level bloodred run run take off your shoes moisture.” (“ZOMG” means “Oh my God”.)

Here is the story from the passenger’s point of view.

Needless to say there are free speech issues involved, and examination of why the TSA or a common carrier can block US citizens for rudeness is needed immediately.

Posner on Citizens United

Posted on by at 7:54 pm

US Court of Appeals Judge Richard Posner, on the Citizens United case:

Posner left no doubt about his criticism of the Supreme Court’s Citizens United campaign-finance decision. He said, “Our political system is pervasively corrupt due to our Supreme Court taking away campaign-contribution restrictions on the basis of the First Amendment.”

He also didn’t mind naming some names, in particular that of Justice Antonin Scalia, a onetime member of the [University of Chicago] law school faculty who lectured and taught at the school in February. Posner brought up the Supreme Court’s 2008 decision in District of Columbia v. Heller, affirming the right of individuals to have handguns at home for self-defense.

Posner doesn’t think the Second Amendment has anything to do with an individual’s right to bear arms, a basis of the decision for which Scalia wrote the majority opinion.

“That didn’t slow down Scalia,” Posner told his Asian listeners. “He loves guns. He’s a hunter.”

(via The Daily Beast)

Verizon claims right to control Internet access

Posted on by at 7:12 am

Verizon is currently in court challenging the FCC’s Open Internet Order, which requires ISPs to provide non-discriminatory access to Internet content. In a filing last week, Verizon claims that it has the right to impose the kind of controls over access to the Internet that a newspaper has in deciding what to publish.

In performing these functions, broadband providers possess “editorial discretion.”  Just as a newspaper is entitled to decide which content to publish and where, broadband providers may feature some content over others.  Although broadband providers have generally exercised their discretion to allow all content in an undifferentiated manner, Order ¶ 14 (JA__), they nonetheless possess discretion that these rules preclude them from exercising. [Full text of brief here.]

So if I understand this claim, Verizon is claiming that when it acts as an ISP it has a free speech right to censor the content it delivers to its subscribers. This would be equivalent to a phone company deciding which phone numbers you can call and which they can block. Crazy and dangerous.

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Political quote of the day (updated)

Posted on by at 9:34 am

If I can’t say the word vagina, why are we legislating vaginas?  What language should I use?

– Michigan State Representative Lisa Brown, protesting the actions of Republicans in banning her from speaking on the floor after stating, in a debate over a restrictive abortion bill, “Finally, Mr. Speaker, I’m flattered that you’re all so interested in my vagina, but ‘no’ means ‘no.’”  A second legislator, Barb Byrum, was also silenced for proposing that vasectomies be subject to the same limitation as abortions under the proposed legislation.

Are the Michigan Republicans 10 year old children who view medical terminology as offensive? Are they all Babbitty little prigs?  Is the party one that should more properly be described as the Michigan Taliban party, based on its disrespect of women?

Update: And now, a performance of the “Vagina Monologues” is set for Monday evening on the steps of the Michigan capitol building.

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Op-Ed hijinks

Posted on by at 8:20 am

This op-ed by Cary Sherman, head of the RIAA, is the funniest, angriest, and most ironic op-ed I have read in quite some time. Basically, she he argues that the challenges to SOPA/PIPA were all damned lies, and that the media industry was helpless to get their message out. Weep for the media industry.

Excerpt:

While no legislation is perfect, the Protect Intellectual Property Act (or PIPA) was carefully devised, with nearly unanimous bipartisan support in the Senate, and its House counterpart, the Stop Online Piracy Act (or SOPA), was based on existing statutes and Supreme Court precedents. But at the 11th hour, a flood of e-mails and phone calls to Congress stopped the legislation in its tracks. Was this the result of democracy, or demagoguery?

Misinformation may be a dirty trick, but it works. Consider, for example, the claim that SOPA and PIPA were “censorship,” a loaded and inflammatory term designed to evoke images of crackdowns on pro-democracy Web sites by China or Iran. Since when is it censorship to shut down an operation that an American court, upon a thorough review of evidence, has determined to be illegal? When the police close down a store fencing stolen goods, it isn’t censorship, but when those stolen goods are fenced online, it is? Wikipedia, Google and others manufactured controversy by unfairly equating SOPA with censorship. They also argued misleadingly that the bills would have required Web sites to “monitor” what their users upload, conveniently ignoring provisions like the “No Duty to Monitor” section.

The hyperbolic mistruths, presented on the home pages of some of the world’s most popular Web sites, amounted to an abuse of trust and a misuse of power. When Wikipedia and Google purport to be neutral sources of information, but then exploit their stature to present information that is not only not neutral but affirmatively incomplete and misleading, they are duping their users into accepting as truth what are merely self-serving political declarations.

The EFF published this response.

… it seems to us that the op-ed’s really unfortunate message is that Hollywood still thinks the way forward is for a few executives to sit down together and make a deal. He calls on “the companies” that opposed the bills to come up with “constructive alternatives” and then have a “fact-based conversation” with the entertainment industries. MPAA chair Chris Dodd made a similar call a few weeks ago.  Even New York Times op-ed columnist Bill Keller seems to think this comes down to a few “players”: in his own piece on the battle against the bills, he seemed to assume that Wikipedia’s Jimmy Wales is the only person who matters on the other side of this debate.

That’s precisely the wrong approach. It was great to see technology companies and platform hosts like Wikipedia stand up against SOPA and PIPA.  But the people Hollywood most needs to consult now are the users of the internet– the millions of people who have found their voice due, in part, to the emergence of technologies and platforms that allow them to speak to a bigger audience then ever before.

The truth is that a broad swath of public interest, consumer rights, and human rights groups were fighting these bills from the get-go, because we saw how they would harm users, not just technology companies and platforms.  Due in part to the hard work of this coalition in raising public awareness, millions of those users saw that, too, and that’s why they contacted their Congressional representatives. We weren’t scared by rhetoric, we were scared by what the bills actually proposed, and we were really scared that the proponents didn’t seem to understand their own legislation.

More info here.

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SOPA quote of the day

Posted on by at 3:23 pm

…, the industry is fighting what amounts to a new popular culture.

Unlike the old pop culture Hollywood dominated, this one is largely independent of the music, movie and broadcast industries. In fact, people who spend hours online instead of watching TV or going to movies will probably encounter the entertainment industry only when YouTube videos of their kids dancing to Prince or spoofing Star Wars are pulled down by Hollywood’s bots, or when the RIAA threatens to sue them for their college savings, or when digital rights software makes it hard to move their stuff to a new tablet or phone.

To the entertainment industry, these episodes might seem like collateral damage in the fight to stop piracy. To the new pop culture, though, collateral damage and misuse of enforcement tools are everywhere, and they threaten everyone. The content industry has made itself into the villain. Increasingly, it looks like an occupying power, obeyed at gunpoint, despised for its ham-handed excesses and resisted from every dark corner. Unfortunately for Hollywood, as its customers migrate to the Internet, it is losing not just their money but their hearts and minds as well.

– Stewart Baker, writing in The Hollywood Reporter, and explaining how Hollywood is losing the culture war with the new online majority.

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SOPA soap opera

Posted on by at 6:57 am

There is a fascinating article in The Hollywood Reporter describing the behind-the-scenes drama at the MPAA during the SOPA smackdown of the past few weeks.

In the desperate hours of early January, with chatter spreading that the White House was poised to make a devastating statement opposing parts of proposed anti-piracy legislation that Hollywood studios considered key to the industry’s very survival, MPAA president Christopher Dodd made a phone call to DreamWorks Animation CEO Jeffrey Katzenberg.

Katzenberg’s company is not an MPAA member, but a list of the top 10 fund-raisers bundling money for President Obama would include not only Katzenberg but also his political adviser, Andy Spahn. It would not include any of the chiefs whose studios belong to the MPAA. So the former U.S. senator reached out, he says, to find out about the thinking inside the White House.

“The rumors were running rampant,” says Dodd. “I was trying to use all the information points I could to find out what was going on.”

Dodd says that at the time of his call, he had been assured no major actions were imminent. Then, on Jan. 14, the administration said it would not support legislation “that reduces freedom of expression, increases cybersecurity risk or undermines the dynamic, innovative global Internet.”

“They just made up their mind to do it,” says Dodd. “I raised issues about it, but they were going to march ahead.”

And the article notes the damage to Dodd’s reputation and effectiveness as a lobbyist caused by this remark:

In the days after the controversial House version of the bill, the Stop Online Piracy Act, was derailed, Dodd belittled those who opposed it and threatened Democrats who had fled when the bill became radioactive. Perhaps his worst post-defeat move came Jan. 19 when he told Fox News that “those who count on, quote, ‘Hollywood’ for support need to understand this industry is watching very carefully who’s going to stand up for them when their job is at stake.” There was an instant outcry, including a petition on the White House website calling on the administration to investigate Dodd for “bribery.” (In less than a week, it had attracted more than 21,000 signatures.)

As I previously noted, that remark by Dodd does seem to come close to an offer of a direct quid pro quo of money for legislative action.

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