Author Archives: Marvin Ammori

Cybersecurity Panel

Cybersecurity Panel

I spoke a few weeks ago in NYC at the Louise Blouin Foundation’s Creative Leadership Summit on a panel about cybersecurity. I emphasized the importance of privacy safeguards and trust.

 

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Filtering the Internet is Still a Bad Idea: DCA, ABC, and Steroid Searches

A few days ago, ABC News ran an “investigative” piece called “Group Probes Ease and Danger of Buying Steroids Online.” ABC describes the “group” at issue as “an online watchdog,” the Digital Citizens Alliance. That group determined that some of the millions of available YouTube videos encourage steroid use and that YouTube (which is owned by Google) places ads next to steroid-related videos and search results. They argue that Google and YouTube should be held legally responsible for any illegal content linked or posted.

ABC News could have told the story differently: A Microsoft-backed group led by a public relations firm (but named for an “alliance” of “citizens”) is holding Google & YouTube to a standard that Microsoft fails, while effectively arguing for filtering of the Internet, through appeals to the emotional issue of teenage steroid use.

Let’s begin with the big picture and move to the details of this group. 

Filtering the Internet is a terrible idea, even to stop illegal drug sales.

It is awful that teenagers turn to any illegal drugs. But perspective is needed. We know some teenagers buy drugs at school; we don’t shut down schools, we don’t search every student, we don’t monitor everything they say, we don’t require them to get permission from an adult before speaking with one another. We engage in education efforts and responsive actions. We also know that people will use the Internet to communicate about everything from coordinating a democratic revolution and reporting government corruption to idle chit chat to illegal activity.

The Digital Citizens Alliance is actually arguing for a filtered Internet. DCA claims that companies should be liable for any illegal content shared on a site. If Twitter, Google, Facebook, Yahoo, and others were guilty of the acts of all the slanderers, copyright infringers, fraudsters, conspirators, and drug pushers on their sites, then they would have to filter all the content on their sites. With a billion users, if even 0.1% of them are wrong-doers, then a platform would be liable for one million wrong-doers. They wouldn’t be able to take on the risk of legal action for all those potential wrong-doers. That means these companies would have to filter content in advance. The Digital Citizens Alliance cannot mean that companies simply have to act quickly and take down illegal content once notified; these companies all take down content when it is reported or flagged for violating their terms of service forbidding illegal activity.

The existing rules strike the right balance. For the past 2 decades we have had a set of rules to ensure freedom of expression online while limiting illegal activity. Those rules generally enable companies like Twitter, Facebook, Google, and the New York Times online to carry the speech of millions or billions of people empowering all of us to publish and comment–through tweets, posts, pages and videos, or comments on stories. They are able to carry the speech of so many people because they are not guilty for all illegal content posted by every single person. (The laws include the celebrated 230 of the Communications Decency Act and also 512 of the Digital Millennium Copyright Act.)  Instead of these companies being liable, the actual wrong-doers are responsible: the slanderers, the sites that traffic in drugs, etc. Recently, the authorities busted an online drug bazaar and a child prostitution ring without having to change the Internet’s magna carta and make tech platforms liable for all the content on their sites. If they were liable, these companies simply would not be able to act as platforms and networks for billions of people. They would have to filter all content in advance and become editors of their platforms, closing opportunities for average speakers.

Companies like Google make huge efforts to remove illegal content. Most platforms for the speech of billions of users have to rely in part on users flagging or reporting content. It’s far more effective and respectful of free expression than attempts to filter through computer algorithms. Go to Twitter: you can “report” every tweet. Check YouTube: every single video has a flag icon. Every piece of content on Facebook can be reported. Considering the number of users and content shared, this flagging is essential. I wrote about this in some detail here. More briefly: one-hundred hours of video are uploaded to YouTube every single minute and that much content can’t be filtered in advance without requiring YouTube to to limit who can post. Googles search engine includes trillions of sites and reflects the web; Google can’t filter them all and shouldn’t have to. In one month alone, however, Google processed over 18 million requests to remove URLs from its search results based on copyright concerns and removed removed 97% of the requested URLs from July 2011 to December 2011. Google also makes efforts to ensure ads are not placed alongside illegal content. (I provide the sources in the other post.)

The Digital Citizens Alliance is a Microsoft-backed group, which is the only reason Microsoft is not their target.

This is an old story. The story is Microsoft’s ongoing strategy of attacking Google in slanted advertisements and through political PR efforts. It’s also the story, it seems, of the copyright industry, which has long argued, in various ways, for pre-filtering all content, including when it attempted to push an infamous censorship bill called SOPA.   

DCA is backed by Microsoft and not a citizens alliance. 

The Digital Citizens Alliance is not an actual alliance of citizens, but instead is known to be backed by Microsoft. Techdirt called DCA an obvious “astroturf” group not a real “grassroots” group. Two of DCA’s three staff members are employees of the DC public relations firm, 463 Communications (Tom Galvin and Dan Palumbo), and the other is also in PR. That is not the makeup of, say, the ACLU, EFF, or Consumers Union, or a legitimate consumer group. The alliance’s advisory board includes someone from the Alliance for Competitive Technology, an organization that receives over a million dollars from Microsoft every year. I live in DC and know folks at 463, ACT, and Microsoft–in fact I even like all of them I know. It’s just that it’s obvious to me and anyone in DC: an organization with this backing and structure is not an online watchdog or an advocacy group but a corporate PR vehicle. 

This close connection with Microsoft explains why DCA has not attacked Microsoft for the same exact things. In fact, if you do a Microsoft Bing search for “buy steroids,” you will see that ads accompany the results, but you will not for the same search on Google.

It’s understandable why something might fall through the cracks on Bing: the Internet is a big place with trillions of sites and billions of real human users who do things that are sometimes unsavory. It is impossible to police them all in advance and requiring them to do so would undermine free expression and change the nature of the Internet. The Digital Citzens Alliance should let Bing know about this issue. But that’s clearly not the intent of the alliance. It’s not around to actually make the Internet a safer place, just to be part of a PR attack on a specific company.

Disclosure: I advise several companies, including Google, on free expression law and public policy.

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The Internet as Metaphor

I am old enough to remember when we had trouble explaining the Internet. It was 1994 or 1995, and everyone was talking about America Online. When telling someone a web address, people would say, “Go to h, t, t, p, colon, slash, slash, w, w, w, dot.” People didn’t even know how to pronounce @ or explain the Internet.

To explain the Internet, we’d use metaphors and analogies. It’s like TV, kind of. It’s like a printing press for everyone. A computer billboard. Electronic mail. It’s one to one and one to many and many to many, unlike TV which is one to many and phone which is one to one.

For the past few years, the Internet is so embedded that we now use even websites as metaphors for other websites: “it’s like Uber, for food,” “it’s like Airbnb, for dogs.” Even our understanding of the brain’s neuron networks seems to borrow heavily from a metaphor to computer networks.  Essentially, it’s so familiar that we intuitively understand it, and have to make sense of new things by reference to the old and familiar–the Internet.

Recurring Myths about the Legal Obligations of Online Platforms

In recent months, some copyright holders, pharmaceutical companies, and  state attorneys general have made allegations against Internet companies that help users find and share information. In short, they claim that because some users engage in copyright infringement, sell counterfeit products, or otherwise encourage potentially criminal activity on the Internet, the users’ Internet platforms should be held responsible for these misdeeds. That is, Google should be punished for any user’s copyright infringement on YouTube, Facebook for any user’s harassing post, and Twitter for any user’s slanderous tweet. According to the critics, that is, these companies should screen all users’ speech and take on the role of editors or publishers, rather than being open platforms for the speech of millions.

Many of these allegations focus exclusively on the biggest company in the space, Google, even though Google already invests considerable resources in reducing infringement, counterfeiting, and unlawful activity on its platforms. One state attorney general accused Google of “a failure to stop illegal sites from selling stolen intellectual property,” as though Google has the obligation or even the ability to stamp out copyright infringement on every “site” on the Internet.

For those who follow Internet policy, these types of arguments should sound familiar, stale, and still misguided. These arguments have failed repeatedly in federal courts, Congress, and the court of public opinion. One wonders why, like zombies in a classic horror movie, these arguments just keep coming back from the dead.

As recently as 2011, some in Congress supported a now-infamous bill called SOPA designed to target Internet intermediaries for their users’ copyright misdeeds. SOPA’s co-sponsors also targeted Google and similarly served on committees focused on intellectual property—committees that often show an unbalanced attentiveness to the copyright industry’s concerns over those of average users and over important principles of free speech more generally.

To ensure digital platforms for user expression, Congress has wisely held that speech platforms should generally not be guilty of their users’ misdeed. Congress has done so through established and widely praised laws such as section 230 of the Communications Decency Act and Section 512 of the Digital Millennium Copyright Act. Courts have construed 230 of the CDA “broadly in all cases arising from the publication of user-generated content.”

Nonetheless, every few years, we see attempts to undermine intermediary immunity. While many such attempts might be well-intentioned  they are deeply flawed and would threaten the Internet’s role as an engine of free expression for hundreds of millions of Americans.

In this post, I respond to the recent allegations by rights-holders and state attorneys general. These critics mistakenly accuse companies of turning a blind eye to users’ potentially illegal behavior on search engines and video platforms. They also advance legal claims that technology platforms should be liable for any abuse on any of its services, despite a lack of support for such claims in the case law (and considerable support for the opposite position). As many of these arguments are specific to Google, I reply to those arguments and explain how my responses apply more broadly to other Internet companies.

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WordPress Blogging With Google Glass–in Iceland

I am going on vacation in July this year and will be traveling around Iceland.

On this trip, I will be taking photos with Google Glass and automatically posting them from Glass to this WordPress site. I am sure you are wondering how that’s possible.

For my trip, my partners at Silica Labs decided to build the first WordPress integration for Google Glass. This will make it possible for me to directly blog from Glass to WordPress, sharing photos and text directly from the device to a blog. (Already, a Google Glass user can directly share to Facebook, Tumblr, and Twitter, thanks to apps developed by those companies.)

I think the Glass-Wordpress integration can help people tell the stories of their travels and journeys.

I am a huge fan of WordPress and of Google Glass, so I’m glad we have integrated the two. Silica Labs has been working with media companies like National Geographic, and Glass integration with WordPress should provide a useful tool.

I think the photos from Glass will be cool. I’ve been to Iceland before and took some of the best photos of my life there. It has volcanic ash beaches, interlocking bays, mountain ranges, and geothermal pools evoking an almost alien beauty. You feel like you’re in a movie about another planet or an ancient realm. Here, look:

iceland lunar

True Threats, Free Speech, and Government Trust: the case of Cameron D’Ambrosio

The Center for Rights, a nonprofit civil liberties organization, is running a campaign to raise awareness of a legal case in Boston that seems to disregard basic First Amendment protections. (The Center for Rights is the 501(c)3 sister of Fight for the Future.)

As usual, the defendant in a free speech case happens to be unsympathetic, and the speech is poor taste, but the First Amendment doesn’t let you throw unsympathetic kids in prison for poor taste.

From the facts recounted by the organization, a teenager named Cameron D’Ambrosio posted a rap song on Facebook that bragged he would be more famous than the Boston Marathon bombers and apparently criticized the White House. As a result of those lyrics, the kid has been in jail for a month and is facing 20 years in jail for “communicating a terrorist threat.”

First Amendment Would Protect Rapping this Song Lyric

I haven’t had a chance to review all the material out there, but everything I’ve read suggests that the First Amendment protects this kind of speech and the kid shouldn’t be sitting in a jail cell.

According to Fight for the Future, the rap line was fairly harmless: “Fuck a Boston bominb wait till u see the shit I do, I’ma be famous rapping.” Some media reports apparently left off the word “rapping,” suggesting that he wanted to become “famous” through his own bombings.

If he said he’d be famous rapping, there is no way that’s a threat, even if it’s a tasteless comparison.

If the rap song suggested he’d become famous bombing stuff, I am not totally sure how that is a threat and not the standard stuff of rap songs. I know that gun violence doesn’t trigger the same angst as bomb-violence (even if there’s more gun violence), but rappers say tasteless violent things all the time–we all know the expression “bust a cap in his ass” for a reason, and that reason is excellent rap music. We all know Eminem raps about killing an ex wife named Kim, and has an ex wife named Kim… Rap music is full of references to violence and slaying rival sucker MCs, usually with guns, only sometimes with bombs apparently.

In light of the obvious context, the legal analysis would probably begin and end with the Supreme Court case of Watts v. United States. That case stands for the principle that political speech is protected but a “true threat” is not.  In Watts, a Vietnam protestor said that if he were drafted to fight in the war, and made to carry a rifle, “the first man I want to get in my sights is L. B. J.” That was ruled protected political speech because it wasn’t a “true threat.” The analysis turns largely on the notion that a reasonable listener would not consider it a true threat of violence.

We do not believe that the kind of political hyperbole indulged in by petitioner fits within that statutory term. For we must interpret the language Congress chose “against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” The language of the political arena, like the language used in labor disputes, is often vituperative, abusive, and inexact. We agree with petitioner that his only offense here was “a kind of very crude offensive method of stating a political opposition to the President.” Taken in context, and regarding the expressly conditional nature of the statement and the reaction of the listeners, we do not see how it could be interpreted otherwise.

The rap song here appears to also be general political (or cultural or counter-cultural) speech and not a true threat of violence.

Government Trust At Stake

I emailed a few First Amendment scholars to see what they thought of the facts of the case. One told me she was troubled and asked how she could help. The other said, effectively, that “the government must know something we do not,” and is otherwise acting “insane,” though perhaps not for the first time. Around the same time I received the email from the second scholar (the one who assumed the government “knew something”), I read an email from a friend explaining that he had been on a grand jury and the jury would indict often based on the idea that the prosecution “must know” something they couldn’t tell the jury.  And these two bits of information reminded me of what several people told me in the run-up to the Iraq War, when there was some doubt we would find weapons of mass destruction based on the available evidence. People would say, “the government must know something they’re not sharing with us.” In short, just trust the government.

I am not so sure American citizens are going to continue “just trusting” their government without evidence in light of recent history, but “government distrust” is generally considered a core principle of the First Amendment in cases such as this one.

If the prosecution has evidence of a planned bombing, beyond an apparently misinterpreted lyric, the prosecution should make that as public as possible.

Despite the alarm after the terrible bombing, this completely unrelated kid has been in jail for over a month and faces 20 years in prison apparently for what the Supreme Court would call a very “crude” and “offensive” expression, not what seems to be a true threat.

Note: I am on the Board of Directors of the Center for Rights.

Today’s Free Speech Lawyers

I have been invited to write an article for Harvard Law Review‘s 2014 symposium on freedom of the press. I’m honored for the opportunity to contribute.

The symposium will coincide with the 50th anniversary of the pivotal Supreme Court case New York Times v. Sullivan.

What interests me, fifty years after Sullivan, is how much the life of a free-speech lawyer has changed. The archetypical First Amendment lawyers of that era represented newspapers like the New York Times against libel suits like Sullivan’s in the US. The archetypical First Amendment lawyers of today, it seems, represent speech platforms like YouTube, Twitter, Tumblr, Wikipedia, and Automattic/Wordpress.com on a range of matters, from usage policies and privacy to copyright, and regularly address global issues.

Much of the leading thinking on freedom of press in the Internet age comes from academics like Jack Balkin, Yochai Benkler, Edwin Baker, Larry Tribe, Larry Lessig, Susan Crawford, Eugene Volokh, Greg Magarian, Danielle Citron, and many others. At the same time, alumni and current lawyers at the Office of Communication of the United Church of Christ, Media Access Project, Free Press, ACLU, the Electronic Frontier Foundation, CDT, PK, and many others, have helped to steer the future of free speech.

But corporate lawyers spearheaded the free speech triumph of New York Times v. Sullivan and I’ve been thinking how today’s lawyers at Google/YouTube, Twitter, etc. are their heirs in many ways. In this article, I’m hoping I can shed some light on if, how, and why that is. Or, as I often do while writing, I may change my mind.

Tech companies like Google and Twitter aren’t perfect, just as The New York Times and Wall Street Journal aren’t perfect. Yet, just as large corporate newspapers often have economic incentives to support freedom of press principles, so do today’s speech platforms. The unofficial tagline of Twitter is “The tweets must flow.” Journalists have profiled several of its speech lawyers as speech “defenders.” Google often hires lawyers with a background in free speech to design usage policies and address speech-threats abroad. Some of the most important free-speech controversies over the past few years have included hate speech on Facebook, the Innocence of Muslims on YouTube, the “blocking” of pro-choice text messages on Verizon, controversies over network neutrality and discrimination against speech technologies, proposed copyright legislation like SOPA/PIPA affecting Internet users and search engines, and the private/public blockading of Wikileaks. One difference between newspapers and speech platforms, of course, is that companies like WordPress.com and Google generally carry the speech of others, not the speech journalists who work there. Other differences include varying areas of law, the myriad judicial bodies at home and abroad that are more likely to affect global tech companies than city-based newspapers, and today’s potentially different norms and concepts that shape the field.

At this point, I plan to contrast and compare the role of tech lawyers in the development of free-expression doctrine with that of newspapers a half-century ago. I will probably focus on companies for whom I do legal work (or that employ friends who will speak with me). I also plan to interview lawyers at traditional publications like The New York Times, the Washington Post, and The Atlantic–partly because these traditional publications have a new set of challenges in the Internet age.

This is a topic I’ve discussed in my book (here) and something that Jeff Rosen has written admirably about, most recently in a New Republic article called the Delete Squad. Rosen once interviewed me for an article and called a legal case I handled “a model for the free-speech battles of the future,” so I’m guessing this article will give me the chance to interview him back.

Oh, and I should note, the companies I do some work for include Google and Dropbox, among others. And my work for them tends to focus on public policy and freedom of speech.

Anticipating Today’s Hearing on Copyright Reform

In late April, the Chairman of the House Judiciary Committee Rep. Bob Goodlatte (R-VA) announced he intended to tackle copyright reform over the summer. Later today, the Judiciary Committee’s Subcommittee on Intellectual Property will hold its first hearing to address the subject, entitled “A Case Study for Consensus Building: The Copyright Principles Project.”

Today’s hearing will be worth watching, and could mark the beginning of efforts to enact meaningful reforms to our copyright system.

Congress has seemed reluctant to tackle copyright issues since the widespread blowback it received in 2011 and 2012 over SOPA and PIPA, controversial copyright legislation that many argued went too far to enforce copyright protections.

Already there’s been a great deal of speculation as to how the Judiciary Committee will approach copyright reform. Mike Masnick at Techdirt, who extensively covered the SOPA / PIPA bills, expressed cautious optimism about these hearings, and saw the subcommittee’s selection of witnesses for this first hearing as a promising sign that it wants to handle reform in a prudent manner.

Still, there has been a certain level of skepticism about the hearing. Mark Hachman at ReadWriteWeb expressed concern that Chairman Goodlatte’s past support for SOPA and CISPA means the Judiciary Committee as a whole will be unable to strike the right balance between ensuring compensation for copyright holders and ensuring innovation in new technologies and services continues, and will favor the copyright community’s interests over others.

David Lowery, a musician of Cracker and Camper Van Beethoven fame, wrote in Politico that he fears the views of the actual content creators will be ignored in this hearing. He argued that the perspective of the artists is crucial to meaningfully addressing problems in the copyright system and developing solutions to them, adding that he expects Chairman Goodlatte to include that community in future hearings.

There have also been calls for the subcommittee to not lose sight of the public’s importance during these hearings. Public Knowledge’s Sherwin Siy said that while the organization lauds the Judiciary Committee for addressing copyright reform, copyright law “can often be a barrier[] to everyday individuals’ ordinary uses of media,” and that Congress should “work to balance the interests of artists with those of their audiences and the public in general.”

While this is only the first in a series of hearings on copyright reform, concerns that Congress will ignore the views of the content industry, the tech community, or the general public are to be expected. No doubt we can expect to hear more from all sides as the Judiciary Committee continues its work on the issue.

Indeed, despite concerns about Congress’s ability to address copyright matters in a balanced way, Chairman Goodlatte’s reform effort could prove to be a positive step. Instead of rushing headlong into another effort to pass legislation (as some, including us, might argue was the case with SOPA), the subcommittee is taking a look at how the current copyright system is functioning, what is working well, what isn’t, and where there might be some areas of agreement so meaningful reform can occur. Chairman Goodlatte said that the goal of these hearings “will be to determine whether the copyright laws are still working in the digital age to reward creativity and innovation.”

Chairman Goodlatte and his subcommittee will have assistance from other quarters as well. On May 2, the National Academy of Sciences Board on Science, Technology, and Economic Policy (STEP) published a report entitled “Copyright in the Digital Era: Building Evidence For Policy.” Although the report was not designed to give recommendations to Congress, it is aimed at identifying data lawmakers need to make informed policy decisions. But the report makes clear that we need much more data about how the copyright system operates in practice to identify areas that need work and being devising solutions.

Given Chairman Goodlatte’s stated desire to learn rather than quickly advance a legislative agenda, today’s hearing should be a good starting point for addressing copyright reform issues.

Testifying before the subcommittee are Jon Baumgarten (former General Counsel of the U.S. Copyright Office), Laura Gasaway (UNC Law School Professor), Daniel Gervais (Vanderbilt Law School Professor), Pamela Samuelson (UC Berkeley School of Law Professor), and Jule Sigall (Assistant General Counsel for Copyright at Microsoft). All five witnesses are also members of the Copyright Principles Project, an effort launched in 2007 to bring together copyright practitioners, academics, and stakeholders to identify possible areas of agreement on how to improve the copyright system. In 2010 the Copyright Principles Project issued a report outlining 25 recommendations for reform, including encouraging registration of copyrights (not a requirement under current law), increasing the Copyright Offices technical and economic expertise, and a number of suggestions relating to the award of damages in infringement cases.

The hearing will begin at 2 pm – you can watch here.

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Google Glass Ready for Shipping

Google announced that it will release Glass devices in waves to its program for Explorers–notably developers.

I’ve been reading quite a bit about Glass, first with an eye towards public policy (privacy, data, etc.) and then with an eye to user experience.

User experience because two weekends ago I took part in a Startup Weekend competition. Our team included two designers plus two Google Pioneers. Pioneers, a smaller group than Explorers, are developers who were invited to one of two Google Glass hackathons. One of our Pioneers had even won a prize at the New York Glass hackathon.

After everyone on the team watched Timothy Jordan’s SXSW speech about developing for Glass, our team spent a lot of time thinking about how people will use Glass and how it may change our lives. We have continued thinking about this question since the competition.

We organized the Google Glass DC Meetup group to bring together the folks in DC who are excited about Glass. Several Pioneers and Explorers will be there. Those in DC should join.

(Oh, and with so much talent on our team, our project ended up winning the Startup Weekend competition with an instant-help app. It was my second Startup Weekend and I am a big fan of that organization and recommend others try it.)

Economic Argument for Updating Privacy Laws

Luke and I published this piece in Politico today, arguing that our current surveillance laws, and the global perception of the USA PATRIOT Act, ECPA, and FISA, hurt our nation’s global competitiveness. It’s not just a civil liberties issues, but also an economic one.

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