Law and Information

As some of you might know by now, I’m co-teaching with John Palfrey a course called Internet & Society: Technologies and Politics of Control at Harvard Extension School. On tonight’s menu is a rather indigestive topic: harmful speech on the Net. John has the lead, and he starts where last class ended: The shift from consumers to active users/creators — a shift many of us think is great. Tonight, however, John takes a different route and focuses on the down- and dark side of the new information environment.

The starting place is the fact that Internet speech is different. John makes three points:

* Net creates potential for aggregation of data where none was possible/economically feasible before
* Internet has made it easier (although it might get much more difficult in the future) to speak anonymously.
* Access becomes possible over great distance at any time – speech that is posted here can be heard around the world.

John now describes the growth of online communities back in the times (i.e. mid 90ies) where ISP offered not only access to the Internet, but were in the business of creating online communities and providing content for their users. The communities were idea and issues focused, town-meeting like with a benevolent dictator style government (aka ability to exclude/terminate access.)

Fade. John tells us the story of (Ken) Zeran v. American Online (In this context, we briefly discuss CDA sec. 230) and Jake Baker to illustrate how things, at some point, turned from good to tricky. The in-class discussion is now on how the results of the two cases can (if at all) be reconciled.Break.

Back to second half of class 6.

Uups, we get a cold call from JP. He asks his TAs and co-teacher how First Amendment and equivalents work in the U.S., Canada, and the EU. Tim gives us a great 1-minute overview of First Amendment law in the U.S. and makes clear that it is primarily a right that protects against governmental viewpoint-censorship. Courts, at the outset of a case, have to make a judgment what standard of review applies to restrictions on free speech – strict scrutiny (e.g. political speech/content-based restriction) or lower standards of review.

Susie talks about Canadian law that is similar re: state-actor requirement. Presumption: Free Speech, everything is protected. Only exemption: violent action (expression through action). But: Government is allowed to restrict fundamental rights if seems legitimate in a democratic society. There’s a five-step-balancing test that looks, inter alia, into individual rights and state interests. Approach is different in Canada, but principles similar.

I now talk a bit about European approaches. My point is, I guess, that the U.S. approach to Internet-harmful speech regulation is, roughly, more speech, i.e. a pro-speech approach. Europe has taken an alternative approach, i.e. an anti-hate approach. Measures have been taken at the national level (e.g. German Penal Code), but also at the level of international law (e.g. European Convention on Human Rights, and, Internet-specific, Convention on Cybercrime, Additional Protocol.) How can we explain these different approaches? There are many elements, e.g. historical facts (e.g. Nazi propaganda in Europe vs. imprisonment of American during WW I for criticizing US participation in war); political/cultural system (i.e. relativistic conception of democracy in the US); trust/distrust in courts; different interpretations of individualism.

John now presents a couple of examples of what we can find on the Net – a slide entitled “The Good, The Bad, and the Ugly (literally). The list includes Nuremberg Files, Babes of the Web, free porn, free music, how to make a bomb, how to make/grow various drugs, etc. — The point is certainly that there are downsides to the shift from passive receivers to active users and creators, respectively.

John now introduces a new set of themes, asking what we cannot avoid on the web: SPAM (potentially a form of protected commercial speech), pornography, Viruses/Affects of viruses, advertising. Possible solutions: The resurgence of online communities reformulated around social networks, ability to exclude, feeling of living room rather than information bazaar. Social software such as Friendster, The Facebook. Technological approaches such as filtering, Pop-up blockers, SPAM blockers, family-friendly user agreements.

We end with a list of issues on the current agenda (“What are the problems?):

* US: 1996 – today: Protecting children online
* Companies: trade secrets (Apple, Diebold)
* Protecting citizens from seeing harmful information: religious; moral (porn); politics; drugs/alcohol; women’s issues.

Finally, John presents not-yet-released Berkman research (sorry, can’t blog: censorship) and, in different context, circulates the Grokster amicus submitted by HLS faculty members.

Interesting class, thanks to all.. Have a safe ride home.