Latest News: This Week in Law and Techdirt Post

On Friday, Marvin was a guest on This Week in Law, a weekly webcast focused on the latest technology-related legal news. Among the topics discussed was the legal trouble facing transportation apps like Uber, SideCar and Lyft, a topic Marvin covered in this piece on Slate. You can watch the full show below:

Over the weekend, Marvin had a guest post on Techdirt, discussing his favorite posts of the week. Check it out here.

Defining Innovation at SXSW

While attending SXSW, Marvin dropped by the Fast Company Grill. Some of the attendees were asked for six-second definitions of innovation. There are some great offerings from Newark Mayor Cory Booker, Microsoft’s danah boyd, SoundCloud’s Ben Fawkes, and Girls In Tech’s President Kate Brodock.

Check out Marvin’s video below:

Curb Your Partisanship

For the past several years, I have been impressed by how much Democrats and Republicans agree on the importance, in principle, of supporting high-tech entrepreneurship. (It’s one theme of my book.)

This bipartisanship was on display last week, when 33 startups flew into Washington, DC to meet with White House officials and Congressmen. The fly-in day was called “Startup Day on the Hill” and was organized by Engine Advocacy, a group that helps give startups a voice in DC and has 500 startup members. (I’m on Engine’s Steering Committee and am a big fan.)

This video clip is from the “Demo” event on Tuesday, where startup founders displayed their companies to members of Congress and their staff,  demonstrating to those in DC that not all companies are lawyered-up/lobbyist-retaining giants.

We had some remarks from Senator Jerry Moran, a Republican from Kansas, now a major champion of high-tech entrepreneurship. For those unfamiliar with Sen. Moran, he is now a lead sponsor of Startup Act 3.0 and years ago was the first Republican Senator to join Senator Ron Wyden (D) in opposing SOPA/PIPA.

This video is a fairly amusing depiction of this bipartisanship on tech issues–a bipartisanship that has extended from the days of SOPA to ECPA reform to Aaron’s Law addressing the CFAA. I am hoping this bipartisanship is extended and strengthened.

In the video, Senator Moran, a Republican, is giving some advice to startup founders. A bearded Mike McGeary, Engine’s Director and someone who worked on Howard Dean’s 2004 campaign, is listening on. The camera then pans to me, the clean-shaven guy in a striped green tie who was a tech advisor to the Obama campaign in 2008. And then it pans to Grover Norquist, champion of the “Taxpayer Protector Pledge,” someone who understands that entrepreneurship drives economic growth, and that economic growth is key to balancing the spending/revenue equations. So we all stand on the same side to support tech innovation, if from slightly different perspectives.

The entire crowd was politically mixed, matching folks on opposite sides of the political aisle.

Hat tip to Daniel Schwartzbaum, who really created the video, and also to the folks at Engine.

Cities Can’t Censor Municipal Networks Under the First Amendment

I am on several email listservs with folks who think about the Internet. This weekend, a question on one of the lists prompted discussion on several of them. The question: can a city block some websites on its network when it offers Internet access to its residents, either through Wi-Fi or fiber networks? Said another way, would the First Amendment protect citizens’ rights to access all the websites through a municipal network?

Let’s consider two possible answers, simply yes or no. On the one hand, you may argue that “he who pays the piper calls the tune”– because the government owns the network, it has the right to choose which sites are accessible. On the other hand, you may believe that the government has the same (or less) constitutional power to block sites on its own networks as it does to order sites blocked on private networks like Comcast’s, Verizon’s and AT&T’s.

Much of the discussion on the listservs is pointing out that municipalities have not attempted to block sites, nor have they expressed much desire to do so. The cities and towns offering Internet access generally don’t have censorship in mind; they are trying to improve access.

I want to focus on the constitutional question: I believe the First Amendment would likely restrict the towns’ ability to block access to certain sites. The question, to some extent, is which analogy is most apt for Internet access, or which previous case will determine the outcome? A court may adopt one of several frameworks to reach its decision, partly because a law can violate the First Amendment for many different reasons and partly because several different judicial tests may apply to similar situations (e.g., “subsidized speech” doctrine and “public forum” doctrine overlap sometimes, as I discuss here).

Designated public forum?

The Supreme Court has held that public streets, parks, and squares are “traditional public forums,” and that the government cannot ban specific content in those forums. This is the case even though government owns the property. Here, the government, while piper-payer, cannot call the tune. I doubt a court would deem a municipal network a “traditional” public forum because networks are less “traditional” forums than public squares.

But the analysis doesn’t end there. The Supreme Court has defined other kinds of forums in its analysis.

There are “designated public forums.” That is, courts can decide that a forum isn’t “traditional” like a street or park, but that the actions of the city officials have “designated” the forum to public speakers in a way that requires city officials not to discriminate among the speakers. The government could explicitly designate a public forum. City officials should do so and city residents should demand it. A government may implicitly designate a public forum through its actions and practices; that is why governments sometimes lose these cases, while insisting they never explicitly designated a public forum.

So, in short, a municipal network might be a designated public forum, and our speech on that network would be protected.

Vague discretion in a nonpublic forum?

There are nonpublic forums–forums over which government has more discretion. But even in nonpublic forums, a restriction must be both reasonable and “not an effort to suppress expression merely because public officials oppose the speaker’s view.”  Thus some laws for a municipal network would be unconstitutional if they suppressed a speaker or site based on its views.

Even if a law, on its face, didn’t target a particular view, it could be unconstitutional for being so vague and covering so many activities that it gave the city officials wide discretion to pick on and censor only those speakers whose views they opposed. Indeed, when the San Francisco BART cut off mobile access to stop a protest, Eugene Volokh and I discussed a similar question. Volokh believed that even if the BART network was a nonpublic forum, one of the restrictions was vague and overbroad, and therefore unconstitutional. Considering the language in cases like Reno v. ACLU and other Internet speech cases, I think it likely that courts would find municipalities’ attempted definitions written in regulations to be problematic, even if the network were a nonpublic forum (or private). Indeed, the ACLU analyzed a proposed private network that the FCC considered authorizing, one that would require a free family-friendly tier. The ACLU found the restriction’s vagueness and overbreadth problematic.

Subsidized speech

There are also complicated cases involving speech subsidized by the government. For example, the government funds public radio stations. In the early 1980s, Congress tried to tie those funds to a requirement that the stations not “editorialize.” But here, the piper-payer could not call the tune. The radio stations could take the funds and call their own tunes.

Another case goes in the opposite direction: the Supreme Court held that libraries accepting public funds can be required to block pornography.

We have to ask: which is more similar? I think the nature of libraries as a public physical space for families and children would distinguish that case from a municipal network that people use in their own homes.

Postal service?

Several people have pointed to the postal service, which the federal government owns and runs, as an example of a publicly owned network to which the First Amendment (and Fourth Amendment) applies, limiting the government’s power to restrict speech. Some rules have been constitutional, others have not been, but the general constitutional rule is largely speech-protective. At any rate, the rule isn’t merely: the piper calls the tune. The public has rights.


The judicial analysis doesn’t end at answering whether a municipal network is a “traditional public forum.” That is only the start of the public forum analysis.

Other analogies and precedents may also inform the courts. It’s perhaps not a slam-dunk case in either direction–until we see a clear restriction we can evaluate. But the existing precedent provides much comfort.

Finally, courts are not always so mechanistic. Judges understand the effects of their decisions, and several pro-free speech decisions would be difficult to explain based on precedent alone or the reasoning in the case. The judges seem to say–in a democracy like ours, government shouldn’t have the power to censor speech in this way. And when judges have a range of different doctrines to choose from (I include only a few above) they might pick and choose the doctrine that protects speech and conforms to our intuitions–that municipal networks should be free, not censored.

As usual, happy to correct any mistakes or address anything I overlooked, so let me know in comments. Also, Chapter 3 of my new e-book, On Internet Freedom, discusses some public forum questions in some depth.


Germany declares Internet access a basic right

In the last chapter of “On Internet Freedom,” I note that at least four nations have declared access to the Internet to be a fundamental right. Add Germany to the list.

 A top German court has ruled that people can sue their Internet providers for damages if connection is lost. The court has ruled that access to the Internet represents a basic need in modern society.

The complaint that brought about the ruling came from a man who lost his Internet connection for two months due to an administrative error caused by a takeover of his Internet provider by another company. He is now entitled to monetary compensation – and while the amount may not be very high, the ruling reflects an important shift. With it, Germany’s Federal Court of Justice has stated that Internet connection is a modern necessity, on par with the right to mobility.

The court compared the situation to a car owner claiming damages after someone else has caused an accident that renders the car unusable for some time.

Press Release for My (E)Book: On Internet Freedom

Friends volunteered to draft and release a statement to the press about my e-book released today, as part of the Internet Freedom Day actions, and which is free today.

I think the press release is wonderful, and it incorporates some of Alexis Ohanian’s and Craig Newmark’s comments on the book. So I’m posting it here.  Thankful for having talented friends…

Internet Scholar Ammori Releases eBook “On Internet Freedom” to Mark One-Year Anniversary of Historic Internet Blackout

“Internet freedom is the defining issue for our generation. We need a world where all links are created equal, not just to preserve all that we’ve built so far, but for all of the innovation that has yet to come. Read this book and make sure we get the future we deserve.

Alexis Ohanian, Co-Founder, Reddit

Washington, D.C. – In celebration of the one-year anniversary of the “Internet Blackout,” First Amendment scholar and Internet policy expert Marvin Ammori today released, “On Internet Freedom,” an eBook that explores the challenges of maintaining Internet freedom and why that continuing struggle is central to democracy.

One year ago, the Internet found itself under attack by Congress, which threatened the Internet’s role as a driver of free speech, economic development, and job creation. On January 18, 2012, an unprecedented grassroots movement of millions of Internet users rose up to make their voices heard with phone calls, letters, emails and website blackouts, ultimately defeating the two controversial bills known as SOPA and PIPA – however, as Ammori notes, the fight is far from over.  In fact, it is just beginning.

“The freedom enabled by the Internet helps realize the values of human rights and also provides a lot of commercial opportunity for everyone,” said Founder, Craig Newmark. “Marvin Ammori reminds us how important that is, and that we can’t take Internet freedom for granted, that we all need to stand up for each other.”

In “On Internet Freedom,” Ammori analyzes three case studies focusing on the freedom of users to connect with one another—the fight against copyright legislation (SOPA); the reactions to government officials pressuring private companies like PayPal and YouTube to silence speech by means of private “terms of service”; and the long pursuit of network neutrality and its importance to the connected future we will soon live in. Ammori walks the reader through the most important aspects of these struggles from the key arguments and the stakes at hand to the roles of critical players.

As Ammori argues, the Internet has and will continue to evolve, taking on a larger role in our democracy and economy and with that evolution comes the realization that our freedoms are under greater threat. SOPA and PIPA were misguided efforts by lawmakers and corporations to increase their control over the Internet by bending and shaping the laws, but these bills will not be the only ones of its kind. In light of this constant threat, everyday users must be willing to work together and jump into the political process at key moments to protect their own rights and ensure the Internet remains open and free.

On Internet Freedom–My New (E)Book

Today is the one year anniversary of the SOPA Blackout–the day the public got the attention of Congress and defeated the awful proposed copyright bill. It was a victory for freedom of speech and innovation.

The groups that helped organize the public to oppose SOPA have come together to declare January 18 Internet Freedom Day. The central site is InternetFreedomDay.Net. Different organizations are also engaging in a wide range of actions today, apart from the common action. Some of them are listed on that site, if you scroll down.

The holiday celebrates our freedom to use the Internet as we wish, generally without anyone’s permission. It also reminds us that maintaining that freedom requires our involvement. We have to protect it.

You can celebrate the holiday by tweeting (or blogging, or making a video) about something you love about the Internet and sharing it. For example, point out something about the Internet  you’d never want to see censored. Or, as Craig Newmark, Craigslist’s founder, has framed it slightly differently:  answer the question, “How does the Internet give you a voice?”

I wrote a short article explaining one thing I love about the Internet–that it has empowered people to debate the most basic questions about the laws governing our media. Before the Internet, mainstream media didn’t cover such debates as they affected their own industries (and our speech). Laws like copyright, among others, hardly received news coverage on TV, let alone critical coverage. Now, the general public can be informed and involved in helping to answer these fundamental questions concerning our democracy.

There’s something else I love made possible by the Internet: e-books.

As a kid, I loved books. I grew up in the suburbs of Detroit, Michigan, which was could be pretty boring in the 1980s, especially compared to being an adult in a city like San Francisco, New York City, or Washington, DC. In the 1980s, we had very little good media. The original Nintendo was awesome for a kid. But not much else in way of electronic media. It was the Couch Potato Era, and we didn’t even have good TV. I remember three networks, then four, and then the rise of cable TV. I remember MTV running ads encouraging us to call our cable operators to demand our MTV. Many of the best shows were years or decades away.

As for news, I wasn’t a big fan of the Detroit Free Press or the Detroit News, my only options really. Local TV news just showed local crimes and pets being saved (or attacking neighbors). As for music, you couldn’t listen to a record before you bought it. Other than Michael Jackson’s Thriller, most albums only had one or two good songs and a lot a filler. Life before the Internet was a vast wasteland.

There were only two places for good entertainment and information:bookstores and libraries.

There were books about everything. Books had all the interesting or different ideas in society. Other than some magazines (found in the same bookstores and libraries), nothing else had any in-depth analysis on any topic. Knowledge was in books. And books might be hard to find, especially as any one bookstore might carry only a few thousand titles.

You didn’t just order any book you wanted, used or new or digital, from an app or device. You went to bookstores and looked around. You wouldn’t even know if a book existed unless you saw it physically, read about it somewhere (often in another book), heard about it, or got a catalog. I remember snapping up books, often at used bookstores, for fear I’d never find them again. And I remember going to library book sales, buying books for a quarter, or by the bag. The magic of a book has remained, but it was different then. It was the really the only place to learn about history and to grapple with the ideas that kids grapple with as they grow up–like what should I do with my life, what’s the meaning of it all, and what makes a good person.

The publishing industry always struck me as efficient enough as a kid. But there was a lot of friction compared to today. For a customer, learning about and finding books was harder. For an author, there were agents, then editors and publishers, and then bookstores. These are bottlenecks of sorts at every step of the way. They added value, of course, but they necessarily delayed the time-to-market and would add costs, passed on as higher prices to readers.

Still, I was planning on writing a book, in paper, in stores, about the Internet, the First Amendment and public involvement. And will.

But January 18, 2013 seemed like a good day to have a short book freely available for folks who care about the Internet. When I decided to write a book for January 18, there was no way to get a book into bookstores in time–through the process of agents, publishers, and so on. Plus, an old friend who writes for the New York Times had just released an e-book and explained why, with pretty compelling reasons.

So I asked around. I read a book by Guy Kawasaki on publishing an e-book. I decided to go for it. All I had to do was get a copyeditor, proofreader, two researchers, and a cover artist–all of whom were pretty awesome. Plus, friends looked at drafts and provided ideas.

I decided I wanted to donate all the proceeds to organizations that work on these issues. I am on the Boards of Directors of both Fight for the Future and Demand Progress, and am providing all proceeds to them. And I also wanted the book to be available without charge on Internet Freedom Day, in honor of the holiday. With an e-book, both of those options were much easier to implement.

Some people have asked why I have made the book available only on Kindle. The Kindle offers a free app–for desktops, tablets, and smartphones. So the free app plus the free book still equals free everywhere. Kindle also requires 90 dys of exclusivity to make the book available in the Lending Library for Prime users. It also must be exclusive to do a promotion–to offer the book for free for one day. Finally, it was easy *for me* to have simply one platform to upload to and keep track of. I was hoping the added hassle of downloading the Kindle app, for those who didn’t have it, wouldn’t be a big deal. Seems like it’s not been a hassle so far.

Finally, I could update the book at the last minute. I’m still waiting for an edit to the book from last night to post, a discussion at the end of chapter 3 regarding the CFAA. It’s taken longer than 12 hours to post, but that’s still a far shorter turn around time than the publishing days of yore.

I don’t think e-books will dis-intermediate and destroy publishing, at all. But I think it will force the whole process to go faster and give us all–writers and readers–more options.

Oh, and I should include a link to the book, free today.

And here is the cover. For those unfamiliar with the Cat Signal, I explain it early in Chapter 1.



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