Lawrence Lessig: Citizens Unite: Via Huffington Post.

There has been a growing fury about the Supreme Court's decision in the Citizens United case, but much of that fury hangs upon an odd reading of the Court's opinion. The Court, it is said, has given corporations all the rights of "persons." It has elevated these artificial beings into entities "endowed by their Creator" (us) "with certain unalienable rights," including the right to free speech.

No doubt the Court has a long history of recognizing the "person" in "Inc." But this current wave of criticism is hard to understand, because the Court's entire Citizens United opinion hung upon the fact that the First Amendment says nothing about who or what is to get the benefit of its protection. It simply bans certain kinds of regulation. As Justice Scalia put it in his concurrence: "The Amendment is written in terms of 'speech,' not speakers." Thus, the government is blocked by the First Amendment from constraining the free speech of any entity, whether that entity is a corporation or a dolphin. [ Read more ... ]

EFF Asks Illinois Appellate Court to Block Unmasking of Anonymous Online Critic: Via EFF.org Updates.

Chicago - The Electronic Frontier Foundation (EFF) and the Media Freedom and Information Access Practicum (MFIA) at Yale Law School filed a friend-of-the-court brief today urging the Illinois Court of Appeals to block the unmasking of an anonymous online critic of a local political candidate.

The critic, commenting on a story on the website of a suburban Chicago newspaper called the Daily Herald, engaged in a heated debate with other commenters. One turned out to be the son of the village trustee candidate in Buffalo Grove, Illinois, who was discussed in the article. The candidate, Lisa Stone, who eventually won her race, asked a state court to order the newspaper to release the critic's name and address without appropriately showing that the statements directed towards her son were defamatory or otherwise illegal. Stone indicated that she may choose to subsequently file a lawsuit once she determines the critic's identity through the pre-complaint procedure.

"Because of the enormous potential for abuse, the First Amendment requires litigants to demonstrate that they have a legitimate case before they can use the courts to unmask anonymous online critics," said EFF Senior Staff Attorney Matt Zimmerman. "Insults are not enough, especially when the conversation takes place in the context of a political campaign." [ Read more ... ]

Supreme Court to Decide Case Involving ‘Right of Informational Privacy’: Via News - ABA Journal.

The U.S. Supreme Court has agreed to decide whether the First Amendment protects demands for personal information from government contract workers at NASA’s Jet Propulsion Laboratory.

The case asks whether the Constitution protects a “right of informational privacy,” SCOTUSblog reports. “The Supreme Court mentioned such a right in a 1977 decision, and has seldom mentioned it since,” the blog says.

The case could affect how the federal government investigates the background of its employees, the Associated Press reports. [ Read more ... ]

Funeral Flap: Justices Weigh Religion, Speech Rights: Via Threat Level.

The Supreme Court agreed Monday to delve into the sensitive question of whether the First Amendment protects anti-gay protesters carrying placards outside military funerals saying “America is Doomed,” “Thank God for 9/11″ and other volatile phrases like “Thank God for dead soldiers.”

The messages and picketing are part of a Kansas church’s belief that the United States’ tolerance for homosexuality is cause for soldiers’ deaths in Iraq and Afghanistan.

The case the justices decided to review Monday tests the boundaries of free speech versus freedom of religion — doctrines embodied in the First Amendment.

Without comment, the justices agreed to review last year’s federal appellate decision overturning a $5 million verdict (.pdf) in favor of a Baltimore father who sued the Westboro Baptist Church of Topeka and its pastor, Fred Phelps, in 2006. The father of Marine Lance Cpl. Matthew Snyder was awarded damages for, among other things, invasion of privacy and emotional distress for the events that occurred outside his son’s funeral at a Catholic church in Maryland. [ Read more ... ]

The Weakest Link Redux: Via EFF.org Updates.

We often criticize DMCA takedown abuse here at EFF, but last week's Cryptome snafu highlights another facet of the problem: how a DMCA takedown for one item can result in the removal of lots of lawful material.

To recap, Cryptome posted Microsoft’s global criminal compliance manual. Microsoft sent a DMCA takedown notice to Cryptome’s domain name registrar and web hosting provider, Network Solutions, alleging that the post infringed copyright. Under the DMCA, a web hosting provider is protected from copyright infringement liability if, among other things, it “expeditiously” disables access to material properly identified in a DMCA takedown notice. Network Solutions asked Cryptome to remove the Microsoft compliance manual. Cryptome refused explaining that the document was posted in order to help the public better understand Microsoft's practices, and followed up with a DMCA counternotice. Network Solutions promptly shut down the entire Cryptome website. Thus, a complaint about a single document caused significant collateral damage to the perfectly legal material on Cryptome. [ Read more ... ]

U.S. Security Agencies Begging for a Cybersecurity "Cold War": Via Blog of Rights: Official Blog of the American Civil Liberties Union.

(Originally posted on Huffington Post.)

So the U.S. security establishment is salivating at the prospect of a new cybersecurity "Cold War." In an over-the-top op-ed in Tuesday's Washington Post, Mike McConnell issues a declaration that we are "fighting a cyber war today" and compares it to the nuclear showdown with the Soviets. McConnell exemplifies the security establishment as much as anyone — former director of the National Security Agency (NSA), former Director of National Intelligence, and currently executive vice president at Booz Allen Hamilton, a private-sector refuge for former U.S. intelligence officials (and a company that stands to make large sums from consulting on cybersecurity). [ Read more ... ]

Flipping Off Cops Is Legal, Not Advised: Via Threat Level.

Flipping the bird, or sticking out the middle finger, is perhaps the oldest insulting gesture on earth. The move dates back to ancient Greece and was adopted by the Romans as digitus impudicus — the impudent finger.

A zillion middle fingers later, an Oregon man is suing suburban Portland cops (.pdf) over his use of the gesture, claiming civil rights violations. Twice he flipped them off for no apparent reason while driving and was pulled over each time — resulting in what he said was a “bogus” traffic citation that was later dismissed, and a tongue lashing he still remembers.

“The guy flew into a road rage,” Robert Ekas, a retired Silicon Valley systems analyst, said in a telephone interview Tuesday.

Lawrence Wolf, a Los Angeles criminal defense attorney, said there was no law against flipping off cops. And in most instances when it leads to an arrest or conviction, the charges are dismissed. But the gesture invites police confrontation, he said.

“It’s certainly not the smartest thing one can do,” Wolf said. [ Read more ... ]

China Widens Net Censorship; Google Exile Looms: Via Threat Level.

The Chinese government is imposing new internet restrictions demanding personal-website operators to acquire central-government permission to operate their sites.

The latest censorship measure, which covers .cn domestic domains, comes as Google is trying to convince Chinese censors to ease up. Google said 43 days ago it would undertake a self-imposed exile from China if the government does not back off from requiring it to censor search results.

The government said the latest move — which also requires site owners to submit a photograph and to show identification — was targeted at tackling pornography. Critics, though said it was based on silencing political dissent. China did not say when the rules would be enforced. [ Read more ... ]

Discussing Citizens United with Larry Lessig: Via Salon: Glenn Greenwald.

Just in case readers here forgot how angry they were with me for my partial defense of the Citizens United decision, permit me to risk once again provoking the hornets' nest by recommending this 20-minute discussion I had on Monday night with Harvard Law Professor Larry Lessig on The Young Turks.  At The Huffington Post, Lessig wrote this response to the arguments I made about the case, and we had what I thought was a very constructive and enlightening discussion of the relevant issues:

Read Original Article:(Via Salon: Glenn Greenwald.)

Any use of this article without the NFL's express written consent is prohibited: Via Law & Disorder Section - Ars Technica.

With the Super Bowl just concluded and baseball's spring training only weeks away, a question occurred to us: whatever happened to the push for copyright holders to tone down their copyright notices?

We hear and see the warnings whenever a football or baseball game is televised, whenever we read books, whenever we watch a movie. These are the sort of warnings that make claims like, "Any other use of this telecast or any pictures, descriptions, or accounts of the game without the NFL's consent is prohibited," despite the apparent wrongheadedness of the statement. [ Read more ... ]

Rulings Leave Online Student Speech Rights Unresolved: Via Threat Level.

Do American students have First Amendment rights beyond the schoolyard gates?

The answer is yes and no, according to two conflicting federal appellate decisions Thursday testing student speech in the online world.

“Ultimately, the Supreme Court is going to have to decide if there ever is a time students have full-fledged First Amendment rights,” said Frank LoMonte, executive director of Virginia-Based Student Press Law Center. He’s one of the attorneys in the cases the 3rd U.S. Circuit Court of Appeals decided.

The U.S. Supreme Court has never squarely addressed the parameters of off-campus, online student speech, but might soon. So far, lower courts appear to be guided by a 1969 high court ruling saying student expression may not be suppressed unless school officials reasonably conclude that it will “materially and substantially disrupt the work and discipline of the school.”

In that landmark case, the Supreme Court said students had a First Amendment right to wear black armbands to protest the Vietnam War. But that precedent, which addressed on-campus speech, is now being applied to students’ online speech four decades later.

One of the cases favoring student speech decided Thursday concerns a senior and honors student. In 2005, the Pennsylvania high school student was suspended 10 days after he created a mock MySpace profile of his principal. [ Read more ... ]

Wikileaks Meets Its Cash Goal — For Now: Via Threat Level.

The whistleblowing site Wikileaks has apparently raised the money it needs to continue operating for the time being, according to a message the organization sent out Wednesday night on Twitter.

“Achieved min. funraising [sic] goal. ($200k/600k); we’re back fighting for another year, even if we have to eat rice to do it,” read the tweet, without specifying whether it had raised the full $600,000 or just $200,000.

The site announced last December that it was ceasing day-to-day operations to focus on raising money. It said contributors could still send documents and tips through its anonymous submission tool. Last week, it was ceasing operations indefinitely because it had raised only $130,000 of the $200,000 it needed to maintain base operations annually. The site says it requires $600,000 to operate if it pays its staff of technologists and curators who sift through submissions to provide context for documents and other information valuable to its users.

The announcement page, beginning with: “We protect the world — but will you protect us?” has not changed, except to add that Wikileaks “will be back soon.” [ Read more ... ]

Be Careful What Your Bumper Sticker Says: Via Threat Level.

“No More Blood For Oil.”

Bumper stickers with that phrase were synonymous with opposition to the Iraq War, during the George W. Bush administration.

Simply hosting that message on one’s bumper was cause enough to remove two attendees at Bush’s 2005 speech at the Wings Over the Rockies Museum in Colorado. The White House had a policy of excluding those who did not agree with the president from his public appearances. It’s a policy a federal appeals court is upholding in a decision a dissenting judge decried as “simply astounding.”

The 10th U.S. Circuit Court of Appeals’ 2-1 ruling means, in short, that the would-be attendees who were ousted from the event had no First Amendment constitutional right to remain at the speech. The two plaintiffs obtained the free tickets from a local Colorado representative, and sued the government for giving them the boot. [ Read more ... ]

Follow-up on the Citizens United case: Via Salon: Glenn Greenwald.

(updated below - Update II - Update III)

As one would expect, a substantial number of commenters yesterday disagreed with the Supreme's Court ruling in the Citizens United case case and with my partial defense of it.  I say that's to be expected because, in our political discourse, it's virtually always the case that opinions about court rulings perfectly coincide with opinions about the policy whose constitutionality is being adjudicated (e.g., those who favor same-sex marriage on policy grounds cheer court rulings that such marriages are constitutionally compelled, while those who oppose them on policy grounds object to those court rulings, etc. etc.).  When a court invalidates Law X or Government Action Y on constitutional grounds, it's always so striking how one's views about the validity of the court's ruling track one's beliefs about the desirability of Law X/Action Y on policy grounds (e.g., "I like Law X and disagree with the Court's ruling declaring Law X unconstitutional" or "I dislike Law X and agree with the Court's striking down Law X").  Campaign finance laws are popular with readers here, and thus a court decision striking down those laws inevitably will be unpopular (though the public at large -- including 2/3 of Democrats -- overwhelmingly agrees with the Court's ruling).  It's critical always to note that these are two entirely distinct questions:  (1) is Law X/Government Action Y a good thing?, and (2) is Law X/Government Action Y Constitutional?  If you find yourself virtually always providing the same answer to both questions -- or, conversely, almost never providing opposite answers -- that's a very compelling sign that your opinions about court rulings are outcome-based (i.e., driven by your policy preferences) rather than based in law or the Constitution. [ Read more ... ]

China Accuses U.S. of Cyberwarfare: Via Threat Level.

In the wake of a recent speech by U.S. Secretary of State Hillary Clinton condemning countries that censor the internet and engage in hacking, China has lobbed a return volley and accused the United States of hypocrisy and initiating cyberwarfare against Iran.

An editorial in the People’s Daily — the main mouthpiece for China’s Communist Party — accused the U.S. of doublespeak and of using “online warfare” to instigate violent unrest in Iran via Twitter and YouTube following that country’s national elections in June.

“We’re afraid that in the eyes of American politicians, only information controlled by America is free information, only news acknowledged by America is free news, only speech approved by America is free speech, and only information flow that suits American interests is free information flow,” said the Sunday editorial, according to the Guardian newspaper.

The editorial was taking aim at a speech by Clinton on Thursday in which she said that access to information, and the internet, is a basic human right, but that countries around the world were erecting virtual walls in place of the physical walls that generally characterize oppressive regimes. [ Read more ... ]

Clinton on Internet Freedom, and Principled Stands: Via EFF.org Updates.

Secretary Clinton's speech last week on Internet Freedom was an important step in bringing online free expression and privacy to the forefront of the United States' foreign policy agenda.

But for all the strong language, it was also a speech of caveats: powerful statements like "we stand for a single internet where all of humanity has equal access to knowledge and ideas" sat close to hedges about the dangers of anonymous speech, and how it might be used to distribute "stolen intellectual property". Clinton expressed concern at those who "violate the privacy of citizens who engage in non-violent political speech", but she also spoke of "redoubl[ing] efforts" similar to the Convention on Cybercrime, a document which provides scant protections for the privacy of anyone being investigated by a foreign government.

Enacting policy has a way of clarifying these ambiguities, for good or ill. Many of the projects that the State Department says it will encourage and fund, including systems to allow whistleblowers to expose corruption, an permit citizens fighting drug-related violence in Mexico to make "make untracked reports to reliable sources to avoid having retribution visited against them", require a strong anonymous infrastructure. The State Department's work will depend on anonymity, so we hope it will defend it. The US government could also take a diplomatic lead in requiring high standards for evidence and due process in international cybersecurity treaties, and we hope they will. [ Read more ... ]

Hello Streisand Effect: Takedown Hall of Shame Grows by Four: Via EFF.org Updates.

(The Streisand Effect describes the phenomenon by which an attempt to suppress information results in faster, broader dissemination of that information. Roughly explained, attempted censorship -- particularly by a famous or well-known entity -- can flag the information as more interesting.)

Last October, we launched the Takedown Hall of Shame to highlight the most egregious attempts to silence speech online with bogus intellectual property complaints. Today, we’re inducting four more would-be censors into the pantheon of speech bullies. They are: [ Read more ... ]

The creepy mindset behind Cass Sunstein's creepy proposal: Via Salon: Glenn Greenwald.

(updated below - Update II)

Cass Sunstein has long been one of Barack Obama's closest confidants.  Often mentioned as a likely Obama nominee to the Supreme Court, Sunstein is currently Obama's head of the Office of Information and Regulatory Affairs where, among other things, he is responsible for "overseeing policies relating to privacy, information quality, and statistical programs."  In 2008, while at Harvard Law School, Sunstein co-wrote a truly pernicious paper proposing that the U.S. Government employ teams of covert agents and psuedo-"independent" advocates to "cognitively infiltrate" online groups and websites -- as well as other activist groups -- which advocate views that Sunstein deems "false conspiracy theories" about the Government.  This would be designed to increase citizens' faith in government officials and undermine the credibility of conspiracists.  The paper's abstract can be read, and the full paper downloaded, here.  [ Read more ... ]

Order to Shut Down Websites Critical of Apex Technology Group is Dangerous and Wrong: Via EFF.org Updates.

Over the holidays, a New Jersey court issued an order requiring upstream providers to shut down three anti-H1-B websites that is deeply dangerous and wrong. The order not only tries to remove allegedly defamatory messages but also requires a complete shutdown of the websites and even purports to require the cooperation of the hosting companies and domain registrars of the websites to do so and for other service providers to identify anonymous speakers.

The plaintiff in the lawsuit, Apex Technology Group, is a staffing and consulting services company. Apex describes itself as "delivering sophisticated technology-enabled solutions to maximize complex business needs." The dispute apparently started when someone uploaded a document purporting to be an Apex employment agreement to docstoc.com, and noted several terms the poster considered unfair to H1-B workers (copy of original post). The H-1B is a non-immigrant visa that allows U.S. employers to temporarily employ foreign workers in specialty occupations. The defendant websites allegedly linked to this post and document, and Apex demanded its removal. Curiously, Apex simultaneously claimed that the document defamed them and that they were its copyright owners. This is unusual, since people rarely defame themselves with their own copyrighted works. [ Read more ... ]

TSA Threatens Blogger Who Posted New Screening Directive: Via Threat Level.

Two bloggers received home visits from Transportation Security Administration agents Tuesday after they published a new TSA directive that revises screening procedures and puts new restrictions on passengers in the wake of a recent bombing attempt by the so-called underwear bomber.

Special agents from the TSA’s Office of Inspection interrogated two U.S. bloggers, one of them an established travel columnist, and served them each with a civil subpoena demanding information on the anonymous source that provided the TSA document.

The document, which the two bloggers published within minutes of each other Dec. 27, was sent by TSA to airlines and airports around the world and described temporary new requirements for screening passengers through Dec. 30, including conducting “pat-downs” of legs and torsos. The document, which was not classified, was posted by numerous bloggers. Information from it was also published on some airline websites. [ Read more ... ]

Fighting Internet Censorship in Australia: Via EFF.org Updates.

Our fellow Internet freedom advocates at Electronic Frontiers Australia are gearing up for an important fight in the new year as the Australian government proposes mandatory national Internet filters with a secret blacklist. EFA is looking for volunteers and colleagues — particularly Australians, but they can use help from outside Australia as well — to help take on this critical issue. As Lelia Green wrote in the Sydney Morning Herald, the censorship proposal risks "legitimating a range of repressive policies pursued by some of the globe's least accountable governments."

In 2006, the New York Times reported that the People's Republic of China was defending its Internet censorship and surveillance practices by claiming that they were not particularly different from those of other countries. The Times reported that a Chinese official argued (in the newspaper's paraphrase) that "the controls [China] places on Web sites and Internet service providers in mainland China do not differ much from those employed by the United States and European countries". [ Read more ... ]

EFF Fights for Anonymity for Online Critic in Friday Hearing: Via EFF.org Updates.

San Francisco - The Electronic Frontier Foundation (EFF) has asked a federal judge in San Francisco to quash a baseless subpoena aimed at outing an anonymous online critic of a Pennsylvania company called USA Technologies. A hearing in the case is set for Friday.

Earlier this year, EFF's client -- Yahoo! user "stokklerk" -- posted to the Yahoo! message board dedicated to the company, criticizing USA Technologies and its CEO George Jensen, Jr., for plummeting stock prices, high compensation rates for executives, and consistent lack of profitability. Another anonymous poster had similar complaints. In response, USA Technologies filed suit in the Eastern District of Pennsylvania, alleging that the statements violated federal securities regulations because they were part of a "scheme" for the authors to "enrich themselves through undisclosed manipulative trading tactics." USA Technologies also alleged that the online posts were defamatory. As part of that lawsuit, USA Technologies issued a subpoena out of the Northern District of California to Yahoo! asking for the critics' identities. [ Read more ... ]

ACLU Sues Arkansas Secretary Of State For Banning Winter Solstice Display From Capitol Grounds: Via American Civil Liberties Union.

Group Illegally Barred From Putting Up Display Despite Meeting State Requirements

FOR IMMEDIATE RELEASE
CONTACT: (212) 549-2666; media@aclu.org

LITTLE ROCK, AR – The ACLU of Arkansas filed a federal lawsuit today charging Arkansas Secretary of State Charlie Daniels with violating the free speech rights of The Arkansas Society of Freethinkers by barring them from erecting a temporary Winter Solstice display on the grounds of the state Capitol.  An application by the Freethinkers to erect a display was rejected despite  the fact that the proposed display meets the requirements of the state capitol display policy and despite the presence of another display on the grounds.

The ACLU lawsuit asks the U.S. District Court for the Eastern District of Arkansas to order Daniels to grant the Freethinkers permission to put up their display.

In 1993 the Arkansas Secretary of State adopted a policy for "Temporary Displays on State Capitol Grounds." The policy set up a system whereby any person or group could put up a temporary display by meeting certain requirements, including sturdiness and non-interference with pedestrian traffic. The Freethinkers' proposed display met the guidelines of the policy, but was rejected. [ Read more ... ]

Lawmakers Want to Bar Sites From Posting Sensitive Government Docs: Via Threat Level.

Three Republican lawmakers have asked the Department of Homeland Security what can be done to bar or criminally penalize whistleblower sites that reposted a sensitive airport-screening manual that was published on the internet by a government worker.

They also asked about enacting regulations that would bar such publication in the future.

The congressmen are outraged that sites like Cryptome and Wikileaks republished the manual after it was posted online by a government contractor working for the Transportation Security Administration. The manual was posted last March on a government procurement site and was discovered Sunday by a blogger.

In their letter to Homeland Security Secretary Janet Napolitano (.pdf) on Wednesday, Reps. Peter T. King (R - New York), Charles Dent (R - Pennsylvania) and Gus Bilirakis (R - Florida) asked, “How has the Department of Homeland Security and the Transportation Security Administration addressed the repeated reposting of this security manual to other websites, and what legal action, if any, can be taken to compel its removal?” [ Read more ... ]

USA Technologies Attempts to Out Anonymous Online Critics, Runs Into New California Fee Statute: Via EFF.org Updates.

A Pennsylvania publicly-traded company has become the latest corporate entity to use the legal system in an attempt to out an anonymous online critic, and EFF is defending the critic with the help of the First Amendment as well as an important new California statute. USA Technologies, based in Malvern, Pennsylvania, recently filed a federal lawsuit against two Yahoo! message board posters who roundly criticized what they claim is the consistently poor performance of USA Technologies' management. The criticism highlighted plummeting stock prices of the company as well as the high compensation rates for management of the company that has been consistently unprofitable. [ Read more ... ]