ISP Reading Group: Free Speech, Information Security, and Democratic Values

by Seeta Gangadharan | February 3, 2011 | Courses | 1 Comment

Every semester, Yale ISP offers a reading group to stimulate new thinking around current problems in technology, law, and society.

Building off recent developments related to Wikileaks, ISP has organized: Free Speech, Information Security, and Democratic Values. The group will meet Wednesdays, 5:30-6:30pm, Room 111. We’ll have our inaugural meeting next week February 9.

Curated each week by different ISP fellows, our discussions will turn on a broad range of concerns related to the rise of information intermediaries and to debates over policies for Internet freedom and information security. Topics include: secrecy and national diplomacy, (new) media ethics, reasonable protection for anonymity, corporate censorship of internet speech, and information activism.

FREE SPEECH, INFORMATION SECURITY, AND DEMOCRATIC VALUES: SYLLABUS

Spring 2011
Yale Law School

Recent publication of leaked diplomatic cables by Wikileaks has raised the profile of debate on free expression, information security, and the nature of democracies in a networked era. What has been the impact of Wikileaks on information security practices at the state level? What ought to be the role of the state in regulating information intermediaries? What role do intergovernmental organizations play? When are Internet freedom and information security policies in conflict with one another? Outside of the law, what responsibilities do information intermediaries such as Wikileaks have to states, traditional media institutions, and other actors implicated in the release of leaked information? Do public responses to Wikileaks, including denial-of-service attacks by Anonymous and other forms of protest, constitute a new movement for social justice or something more misguided or even destructive?

In this reading group, we will explore these and other questions. Our goal is to approach the problems, anxieties, and proposals regarding Wikileaks from a broad, interdisciplinary view and parse through the nature, meaning, and impact of information intermediaries on democratic values and practices.

Weekly meeting time: Wednesdays, 5:30pm-6:30pm; Location: Room 111

NB: Also, one or two meetings may take place on a Friday or Monday (schedules permitting).

Lead organizer:
Seeta Peña Gangadharan

Convenors:
Nicholas Bramble
Bryan Choi
Perry Fetterman
Daniel Kreiss
William New
Rebecca Wexler
Kyoko Yoshinaga
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February 9: Wikileaks and the First Amendment

Readings:

• Eugene Volokh, Crime-Facilitating Speech
• New York Times v. US, 403 U.S. 713 (1971)
  • Hugo Black concurrence
  • Warren Burger dissent

Questions:

• Discrete and targeted leaks can be analyzed under the Pentagon Papers standard, but how will courts deal with an ecosystem of leaks?
• How should courts define the scope of a free press?
• How should courts balance the values of that free press against complex and often conflicting governmental interests in secret diplomacy and the free flow of information?

Convenor: Nicholas Bramble

February 16: Freedom of Speech and National Security

Readings:

• Doug Meier, “Changing With the Times: How the Government Must Adapt to Prevent the Publication of Its Secrets”, Review of Litigation, Vol.28, Issue 1 (Fall 2008), pp. 203-240.
• “Recent Cases Constitutional Law – Due Process and Free Speech – District Court Holds That Recipients of Government Leaks Who Disclose Information Related to the National Defense May Be Prosecuted under the Espionage Act – United States v. Rosen [cases]”, Harvard Law Review, Vol. 120, Issue 3 (January 2007), pp. 821-828.
• Jonathan B. Wilson, C. Celeste Creswell, and Thomas A. Rust, “XII. Internet Industry”, American Bar Association. Section of Public Utility, Communications and Transportation Law. Annual Report, Vol. 2008, pp. 253-265.
• Notes on Wikileaks, Franklin, Anderson and Lidsky, Mass Media Law: Cases and Materials (7th ed. 2005) 2009 Supplement pp.10-12.
• Glenn Greenwald, The War on Wikileaks and Why it Matters, Salon, March 27, 2010
• Glenn Greenwald, The Wikileaks Afghanistan Leak, Salon, July 25, 2010

Questions:

• To what extent is freedom of speech guaranteed in relation to National Security?
• Could a recipient of government leaks who discloses information related to the national defense be prosecuted under current U.S. law? What if a recipient is an alien (a foreigner)? Do other countries have such a law?
• What are some legal, institutional and technical measures that can be taken to protect National Security?

Convenor: Kyoko Yoshinaga

February 23: History and Values of Wikileaks

Primary:

• Houston, B. (2010). The future of investigative journalism. Daedalus, 139(2), 45-56.
• Lanier, J. (2010, December 12). The hazards of nerd supremacy: The case of Wikileaks. The Atlantic.
• Lindquist, B., & Huor, J. (Producers) (2010). Wikirebels-The Documentary [television]. Sweden: SVT. (Note: a Pro-Wikileaks documentary)
• Schudson, M. (2010). Political observatories, databases & news in the emerging ecology of public information. Daedalus, 139(2), 100-109.
• Zelizer, B. (2005). Definitions of journalism. In G. Overholser & K. Jamieson (Eds.), The press (pp. 66-80). New York: Oxford.

Wikileaks artifacts:

• Assange, J. (2006, December 5). Of potholes and foresight. Counterpunch.
• Assange, J. (2010, July 10). Why the world needs Wikileaks [Ted Talk]
• Hacker novel Underground (1997) by Suelette Dreyfuss with contributions from Julian Assange.
• Initial Wikileaks site (January 14, 2007); updated Wikileaks site (November 16, 2007)
• Internal development listserv for Wikileaks, 2006-2007. (Note: Edited in part by John Young, Founder of Cryptome)

Questions:

• How has Wikilieaks’ democratic mission transformed over time?
• In the history of the press in the United States or elsewhere, what, if any, are parallels to Wikileaks?
• To what extent was Wikileaks functioning as a press in its initial days? Or stated differently, what journalistic norms and practices define the Wikileaks enterprise?

March 2: Wikileaks and “Old Media”

Readings:

• Michael Schudson and Chris Anderson, “Objectivity, Professionalism, and Truth Seeking in Journalism.”
• Yochai Benkler, “A Free Irresponsible Press: Wikileaks and the Battle Over the Soul of the Networked Fourth Estate.”
• Mark Deuze, “What is Journalism?: Professional Identity and the Ideology of Journalists Reconsidered.” Journalism 6(2): 442-464.
• Jay Rosen, “From Judith Miller to Julian Assange.” Press Think.

Questions:

• What is the relationship between Wikileaks and the press?
• Why these outlets and not others?
• On what grounds do WikiLeaks and the press legitimate their authority to make decisions about the publicity of information?
• Should there be legitimate limits on access to information in the context of WikiLeaks?
• What should the sources of accountability, if any, be over these intermediaries?
• Does WikiLeaks need the professional press for its own legitimacy as an information intermediary and, if so, can we imagine a different institutional arrangement that would better manage access to information?

Convenor: Daniel Kreiss

March 9: Corporate Censorship and Internet Freedom

Readings:

• Global Network Initiative: http://www.globalnetworkinitiative.org
• Kopytoff, V. (2011, March 6). Sites like Twitter absent from free speech pact. NY Times. https://www.nytimes.com/2011/03/07/technology/07rights.html?hpw
• Kreimer, S. (2006). Censorship by proxy: The First Amendment, Internet intermediaries, and the problem of the weakest link. University of Pennsylvania Law Review, 115, p. 11-111.

Questions:

• What power and responsibility does government have in preventing information intermediaries from censoring free expression?
• What can modern day information intermediaries learn from the case of proxy censorship during the McCarthy and civil rights-eras?
• To what extent do attempts such as the Global Network Initiative adequately deal with problems of proxy censorship?

Convenor: Seeta Peña Gangadharan

March 23: Hackers and cyberactivism

Readings:

• Dreyfus, S., & Assange, J. (1997). Underground: Tales of hacking, madness, and obsession on the electronic frontier. Kew, Australia: Mandarin.
• Pamphlet for the United Nations Interregional Crime and Justice Research Institute Hacker Profiling Project
• Olson, P. (2011, March 16). Forbes hacker girl [blog]. Forbes.
• Burns, J. F. & Somaiya, R. (2011, December 8). Hackers attack those seen as Wikileaks enemies. The New York Times.
• Peralta, E. (2011, February 16). Anonymous hack brings security firm to its knees. NPR.

Questions:

• What function have personal narratives/character portraits played in shaping public, media, and government response to Wikileaks and to Anonymous?
• What function has myth and misinformation played in shaping public, media, and government response to Wikileaks and to Anonymous?
• What, if anything, do we need to know for certain about the reality of the people involved in these actions in order to better guide our responses?

Convenor: Rebecca Wexler

March 30: Wikileaks and U.S. Control of the Root

Readings:

• Renewed Fights Over Internet Control In A Post-Wikileaks World
• US Ambassador In Geneva Defends Secrecy In UN Pandemics Negotiations
• Calls At UN For An International Body To Prevent Internet Control
• What If There Were An Application For Dot Wikileaks?
• Uproar Over Government-Only Internet Governance Forum
• US Online Counterfeit Crackdown Raises Global Policy Questions
• Wikileaks Creator, In Geneva, Denounces US Abuse Of Human Rights
• Confidential Documents From WHO R&D Finance Group, Industry, Raise Concern
• Milton Mueller, Ruling the Root, Chapter 11, Global Rights to Names

Questions:

• Recent actions by the US government in response to unfavourable Wikileaks releases (and to online sales of counterfeit goods) demonstrate the concern in the continuing control of the Internet Assigned Numbers Authority by the US (as managed by the Internet Corporation for Assigned Names and Numbers). Is this the point at which control of underlying aspects of the domain name system need to be fully opened to all nations, or would that spell the end of Internet security and stability as we know it?
• What can be done?
• And how does this play with ICANN’s efforts to open the domain name system wide to new domains, some desirable to the US and others maybe not?

Convenor: William New

April 6: Open Internet Backlash

Readings:

• Clinton, H. (2011, February 15). Internet rights and wrongs: Choices and challenges in a networked world, George Washington University, Washington, DC.
• MacKinnon, R. (2011, February 17). “Internet freedom” in the age of Assange. Foreign Policy, n.p.
• Balkin, J. M. (2011, March 11). The First Amendment is an information policy. The 20th annual Hugo L. Black lecture on freedom of expression, Wesleyan University, Middletown, CT.

Questions:

• How do the goals of Wikileaks conflict with policies for Internet freedom?
• Do information intermediaries like Wikileaks need a U.S. policy regime that supports Internet freedom?
• How does the Obama Administration’s stance on Wikileaks impact its ability to promote policies for Internet freedom?

Convenor: Seeta Peña Gangadharan

April 13: Anonymity and Information Security

Readings:

• Lawrence Lessig, Reading the Constitution in Cyberspace, 45 Emory L.J. 869, 876-82 (1996)
• Note, Constitutional Right to Anonymity, 70 Yale L.J. 1084 (1961)
• Lyrissa Barnett Lidsky & Thomas F. Cotter, Authorship, Audiences, and Anonymous Speech, 82 Notre Dame L. Rev. 1537 (2007)

Questions:

• To what extent should anonymity be protected?
• Does the First Amendment include a “right to anonymity”?
• How much anonymity does WikiLeaks need to achieve its purpose?
• Would the WikiLeaks story have turned out any differently if Pfc Manning’s identity had remained undiscovered?
• Does the United States government have any legitimate interest in conducting activities anonymously (with respect to the public)?

Convenor: Bryan Choi

April 21: Analyzing News Coverage of Wikileaks

Readings:

• Bennett, W. L. (June 06, 1990). Toward a Theory of Press-State Relations in the United States. Journal of Communication, 40, 2, 103-25.
• Greenwald, G. (2010, October 27). More on the media’s Pentagon-subservient WikiLeaks coverage. Salon.
• Polina, C. (2011, April 15). U.S. under pressure over soldier Manning case. The Voice of Russia.
• Macaskill, E. (2011, April 11). Bradley Manning case sparks U.N. criticism of government. The Guardian.
• Lopez, R. (2011, April 15). Why is Obama torturing Bradley Manning? DailyKos.
• Williamson, D. (2011, April 15). Bradley Manning’s mother asks William Hague for help. Wales Online.
• Lakshman, N. (2011, April 14). Top U.N. official denied unmonitored visit to Manning. The Hindu.
• (2011, April 15). Private visits with Wikileaks suspect denied. Mercury News.

Questions: TBD

Convenor: Jane Rosen

April 29: Wrapping Up

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