John Palfrey

Congratulations to Denise Howell and family on their wonderful Thanksgiving news.  One of the first babies in the Blawgosphere!

Dave Winer spoke at Stanford Law School’s CIS’s lunch series yesterday — a successful presentation from all reports.  Dave apparently was very convincing.  Word is that every SLS student entering next year will be offered a weblog, says Prof. Lessig.  We have good reason to believe that they’re not the only one about to roll out such an initiative.  (Wouldn’t it be cool if we could figure out a way meaningfully to integrate these growing communities of interest?)

A huge victory for EFF, Stanford’s CIS, those famous Swarthmore students, our own Derek Slater – and frankly everyone who is interested in the principles behind the First Amendment – as Diebold has filed with the court to indicate that it wishes at this point neither to sue those who posted the e-voting-related documents on the Web nor to pursue further the DMCA notices filed with ISPs to require take-down (via Donna and others).  Fingers crossed that the court approves.

An excellent decision.  Bravo, in particular, to those who put themselves in harm’s way for an important principle, and to those who stood behind them.  (See Prof. Lessig’s post for what you should do about it). 

The Harvard Crimson ran an op-ed I wrote about the Diebold matter.  The focus is on Derek Slater’s story here at Harvard, but it’s meant also to talk about the awful position in which universities are placed by this law.  How is a university supposed to choose between thinking of itself as an ISP and availing itself of the safe harbors in the law, protecting its endowment, and standing tall as an academic institution first and foremost, protecting its integrity?  FWIW, I am delighted that Harvard has stood behind Derek and acknowledged his fair use defense.  I realize that’s a very big deal.

There’s much more to be done on this issue.

I’m so impressed that Cong./Presidential Candidate Kucinich is linking to various Diebold-related materials from his house.gov site – now that’s political speech.  (Thanks to Prof. Lessig, new esq. Dan and, before both of them, to The Great Donna for pointers and ongoing coverage.)  Huge kudos also to Cong. Kucinich for his call for hearings — with an attached list compiled by EFF — on DMCA abuse.  There’d be a long line of people looking to testify. 

BTW, Wendy Seltzer and Co. are so completely right on this issue.

And the Crimson ran a piece this morning on Derek Slater’s Diebold victory at the university level.

Ethan Zuckerman, along with various other Berkman fellows and students and others, has just kicked off an initiative to encourage blogging in Africa.  Ethan and Andrew McLaughlin are headed to Accra, Ghana, in January to kick it off in person.  Dave Winer’s in on the action as well.  Ory Okolloh is taking it to Kenya.  It’s going to be very interesting.

“People have generally overstated the impact of the Patriot Act,” Prof. Eugene Volokh just told us in his talk as part of the Berkman Center speaker series.  Though provocative, his views on the Patriot Act are not at the core of what he is saying today.  Prof. Volokh, who teaches law at UCLA and a visiting professor at Harvard Law School this semester, is telling us about his new paper on Crime-Facilitating Speech.  He’s gone old-school, using white boards instead of .ppt; no notes; just fast, near-seamless argument (his students better not blink).  His definition of CFS: “Speech or expressive conduct that, either intentionally or not, communicates information that makes easier either committing a crime, a tort, an act of war, suicide, or escaping punishment.”  The Supreme Court has not taken up this problem, other than at the margins, over the past twenty years, despite taking up flag-burning five times, Volokh argues.

Some of the axes along which to think about possible legal restraints on CFS:

* Did the speaker have knowledge that the speech will have a crime-facilitating effect?  (Unfulfilling as a sole metric, Volokh says).

* Did the speaker have intent for the speech to have a crime-facilitating effect?  (Ditto, says Volokh, as intent doesn’t get you where you want to be.  If you were to use the Intent rationale, then, in the Austin bomb-making case, do we want a legal regime in which Austin is punished but the person who mirrors that site is not punished?  You’re then not focused, Volokh says, on whether the speech restriction is effective.)

* What are the possible legal (and perhaps desirable/valuable) uses to which speech might be put in related manner?  Having some idea of these positive uses helps to point out speech that we want to protect.

The bottom line is that there are two categories of presumptively unprotected speech, in Volokh’s view: if the speech could cause a potentially extraordinary harm (the “Progressive H-Bomb” example) or if the speech is valueless or nearly valueless to society (his definition is more nuanced than this one; read the forthcoming paper to get the exact language).  The potential extraordinary harm cases are hard to parse from other cases, Volokh notes, but making a weapon of mass destruction would fit within that category.  So, for instance, speech that he thinks ought not to enjoy Constitutional protections: burglar advice, lookout, and publishing social security numbers of others on the Net, say, none of which do much other than to facilitate crime.   

Update: Wendy Koslow has much more extensive notes here on the Berkman Center weblog.

There’s a lot more unpacking to do before we understand the full potential impact of the CAN-SPAM Act (of 2003?) that just passed the House
(having passed the Senate previously, by unanimous vote). 
One of the most obviously relevant elements, off the bat: the fact that the
bill
says it pre-empts the 30-some state laws that combat spam, including
the California law meant to take effect on January 1, 2004 (and the
subject of legal challenge).  Section 108 of the bill reads, in
relevant part: “This title supersedes any statute, regulation, or rule
of a State or political subdivision of a State that expressly regulates
the use of electronic mail to send commercial messages, except to the
extent that any such statute, regulation, or rule prohibits falsity or
deception in any portion of a commercial electronic mail message or
information attached thereto.”  (Sec. 108(b)(1))  As a general matter, a federal law
to fight spam is a better idea than state laws, but one continues to
have the persistent problem of off-shore spammers and an intractable
enforcement problem.

Derek Slater, a Berkman Center researcher, achieved a victory today when Harvard’s general counsel’s office told him that they would not hold against him, for the purposes of its Digital Millennium Copyright Act (DMCA) policy, his posting on the campus network certain information with respect to voting machines.  In response to a “cease and desist” letter from lawyers for Diebold, Incorporated, alleging infringement of copyright, sent to him via Harvard as his ISP, Derek pushed back to the university.  In his own defense, Derek asserted “fair use” under copyright law (17 USC Section 107).  Harvard agreed today that Derek had a reasonable claim in this regard and told him that the university would not hold this incident — at least based on the facts so far — against him for the purposes of its policy of disallowing network access for reason of infringement of copyright. 

I wholeheartedly support Derek in his assertion of a fair use defense in this matter for three reasons.  First, I think it is inappropriate to use the copyright law, and particularly the DMCA’s (17 USC Section 512), as a means to stifle political speech of this sort.  Second, I think that every university has a responsibility to factor in its academic role, as well as its role as an Internet Service Provider under certain United States laws such as the DMCA, when forced to take up a matter of this sort and when determining how to respond when its students are accused in this regrettable manner.  Finally, I am convinced that Derek has a strong fair use defense and that he ought to be supported in his assertion of that defense.

Ethan Zuckerman is talking about his work on Global Attention Profile (GAP) today in Digital Democracy class at HLS.   The GAP is, in part, “a portrait of a news media outlet’s attention to various nations. GAP
software automatically crawls a news media outlet’s website and
calculates country-by-country story counts over a period of time. This
paper reports these story counts and correlates them to a wide range of
country data sets provided by the World Bank.  GAP research
demonstrates that the most accurate predictor of a media outlet’s
attention is the size of a nation’s gross domestic product. This
correlation is significantly greater than the correlation between media
attention and the size of a nation’s population, and appears to be the
strongest correlation between media attention and 21 factors examined.
Generally speaking, violent conflict seems to have less effect on media
attention than the size of a nation’s economy does.”  Ethan’s active research project is incredibly cool. 
Everyday you can see what a variety of news outlets are covering and
mapping those stories on a picture of the world.  He’s going to
move from mainstream media to the blogosphere soon, which will be a
terribly interesting addition to his work.
 
So Digital Democracy
is a law school class (and the Berkman
Center, where Ethan is a fellow, is a part of Harvard Law
School).  Is it a legal issue if a certain part of the world –
say, sub-Saharan Africa — gets less news coverage than countries with
fewer people but higher GDPs in the relevant countries?  Stipulate
that Ethan’s right, and the best single factor to determine whether a
given country will get news coverage is whether than country has a high
GDP and a willingness to import goods and services.  Is there a
global right to be heard?  (Consider the Cass Sunstein “Daily Me”
concerns in republic.com and the First Amendment arguments related
thereto).

Ethan says there are three good reasons why one cares.  Most fundamentally, the
answer is “trade and aid”.  1) If you’re Mali, you care about
getting mainstream global (read: Western?) media attention because
you’re after trade.  If you don’t show up on anyone’s “mental
trade map” you’re not going to get involved in a joint venture, foreign
direct investment, etc.  2) You care also about international
aid.  Media attention may help you in the aid sweepstakes. 
3) Intervention in the event of genocide and civil war.