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Internet Speech update beyond sex and violence Lee Tien Electronic Frontier Foundation DragonCon2002.

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Presentation on theme: "Internet Speech update beyond sex and violence Lee Tien Electronic Frontier Foundation DragonCon2002."— Presentation transcript:

1 Internet Speech update beyond sex and violence Lee Tien Electronic Frontier Foundation DragonCon2002

2 What’s new? More than sex and violence More than gov’t censorship More than American censorship

3 Old themes Protecting the children –sex Private censorship –libel –censorware The rest of the world? Exporting speech?

4 New themes Who’s reading what where? Techno-speech: the “functionality” issue Anti-terrorism & surveillance Chokepoint problems –Don’t have to go directly after speakers/users –Put pressure on intermediaries like ISPs –Or implant technical controls (SpamAssassin)

5 Rough overview of speech law Congress shall make no law... abridging the freedom of speech, or of the press” –Press Clause means almost nothing today Freedom is about acts, not things –Speaking, disseminating, etc. –First A protects selling books/music just as much as giving it away

6 Types of speech “unprotected”: obscenity, child porn (FW?) “low-value”: indecency, HTM, advertising Speech plus: picketing Symbolic speech: black armbands Expressive conduct: flag-burning ???? “How to” speech ????

7 Types of speech acts Right to read Right to associate Right to not speak (anonymity) Right to research???

8 Tools of speech? Media are protected — but not equally –Weak protection for broadcast –Strong protection for print –Internet? Formally strong but.... Taxes on ink and paper Regulation of newsracks Ban on envelopes would affect speech

9 Some basic principles No prior restraint –Only court can decide if speech unprotected –But being “chilled” isn’t a prior restraint –Copyright, trade secret injunctions? Precision, causation and “harm” principles Major rule: not OK to regulate meaning Lots of complex loopholes

10 Sex (obscenity) Would average person, using contemporary community standards, find that the work as a whole appeals to prurient interest; Does work depict/describe, in a patently offensive way, sexual conduct specifically defined by law to be obscene; and Does work as a whole lack serious literary, artistic, political, or scientific value?

11 Sex (harmful to minors) Picture/GIF/other visual depiction that- –as a whole and with respect to minors, appeals to prurient interest in nudity, sex, or excretion; –depicts/describes in patently offensive way with respect to what is suitable for minors, an actual or simulated sexual act, sexual contact, or a lewd exhibition of the genitals; and –taken as a whole, lacks serious literary, artistic, political, or scientific value as to minors.

12 CDA, COPA, CIPA Old case struck down CDA indecency COPA (ACLU v. Ashcroft): new HTM –Still in litigation, injunction remains –Foreshadows big debate to come on geography CIPA (ALA v. Ashcroft): censorware –We won first round, heading to Supreme Court –Main theme: censorware incredibly imprecise

13 CDA again Nitke v. Ashcroft in SDNY Challenges remainder of CDA on obscenity Thomas case: place of receipt Can be both! Gov’t picks and chooses. Like COPA — how do you apply geographical standards to Internet speech? Six justices think it can’t be done

14 More sex(child porn) visual depiction of minor (under 18) engaging in “sexually explicit conduct” (actual or simulated intercourse, bestiality, masturbation, sadistic or masochistic abuse, or “lascivious exhibition of the genitals or pubic area”) Virtual child porn? –images that "appear to be" minors Child modeling?

15 Threats and privacy true threat: –statement which, in full context, reasonable person would foresee would be interpreted by those to whom statement is communicated as a serious expression of intent to inflict bodily harm upon that person –e.g., violence/harm that the speaker causes Privacy v public info? Addresses, SSNs

16 Violence, threats, etc. Violent speech is protected, even for kids Trend toward using “protect children” against violent videogames (Indy, St. Louis) But also more general trend on “harm” and Internet dissemination Fear that Internet amplifies harm potential –Even of mere information

17 Globalization So far focus on US law But global context of growing importance Hate speech (Yahoo! case) Religion (CoS, Italians & blasphemy) Private sector: UK/Aussie defamation Can US be free speech haven?

18 Who’s reading what where? Audience size (amplifies harm) Audience scope (children? foreigners?) Geographical standards? Policymakers see anonymity as problem Various geolocation or compelled ID By law or designed into Net architecture?

19 What about techno-speech? Speech that describes weakness or explains “how to” being targeted E.g., vulnerabilities in systems? Old worry about crypto export controls Now private censorship because of DMCA DeCSS/2600 case.... Legal: content v “functionality”

20 Intellectual property effects DMCA chills scientific speech about security weaknesses –Felten v RIAA –DRM conference (ACM) –HP & SnoSoft collective Non-DMCA also chills innocuous stuff –Hacking Sony Aibopet –Hacking Lego Mindstorms

21 More IP effects Copyright (Scientology stopped Google) Trademarks/domain names Trade secrets & reverse engineering End-user license agreements (EULA) –Censorware? Linking

22 Chokepoints on the Internet Utopian talk about unregulability of Net Wrong or at least underestimate danger Most of us rely on service provider (MAPS) Elephant/mice problem –If we depend on identifiable entities with assets, pressure on them can control flow –Mice hard to sue but easily scared

23 But ISPs aren’t alone They’re just the physical layer What about techno-based controls? –“consensus” technical standards –DRM in OS or hardware (MS PD, TCPA) –Or in apps (browsers, e-mail) –Think of censorware –Or SpamAssassin

24 Anti-terrorism push.... People afraid to speak out Surveillance also threatens speech FISA warrants to bookstores, etc. Cybersecurity concerns re “hackers” Internet cafes targeted worldwide

25 conclusion Will get worse before gets better Netizen optimism based on technical chops Gov’t, business compensate with $, focus And lots of techies in corporations who end up helping censorship Everyone needs to be politically active Please contribute to EFF!

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