Battle Over Message Board Flame War Must Not Circumvent the First Amendment

The First Amendment provides qualified protection for anonymous speakers. MFIA and EFF encourage the court to recognize such protection by instituting the same process established by other courts across the country (see, eg, Dendrite).

The viability of newspaper websites as forums for such political discussion and whistleblowing is at stake, along with fundamental First Amendment values inherent in the protection of political speech.

For the full brief, click here.

This panel explores A2K issues relevant to classic civil and political rights, particularly freedom of expression.

Political expression and dissent are increasingly exercised online, through technologies ranging from social networking tools, blogs, email, and cell phones to more concealed and complex technical approaches such as the use of distributed denial of service attacks to disrupt government servers. Some governments have responded to new forms of digital dissent with new forms of technological repression.

The same technologies that expand opportunities to engage in legitimate political protest have created unprecedented privacy concerns; of particular concern is the practice of deep packet inspection allowing scrutiny by governments, often through private industry, of the details of users’ text messages, web searches, and emails.

The panelists included:

Anupam Chander, UC Davis School of Law

Laura DeNardis, Yale Information Society Project

Theresa Harris, Human Rights USA

Eddan Katz, Electronic Frontier Foundation

Moderator: Nabiha Syed, Yale Information Society Project

Some of the questions to be pursued by this panel include:

What are examples of online technology and expression that may be empowered or made vulnerable? How are governments responding to these new forms of dissent? Is there anything truly new about these forms of protest versus more traditional forms?

What is the nature of the technical architecture that enables these new types of democratic expression and protest? In what ways can the same technologies be used to violate human rights? Is there a human right to any particular form of technology, or rights vis a vis technology?

What is the role of corporate social responsibility in relationship to Internet freedom? To what extent should we be concerned about private control over new forms of dissent and speech, as well as government control?

What is the role of government investment in telecommunications, universal access and closing the digital divide, and infrastructure design as human rights issues? Does freedom of expression require positive government efforts to extend technological access and what would these look like?

Laura DeNardis kicked off the panel by discussing her current research exploring the relationship between Internet technical architecture and political protest and expression.  The theoretical framework for her research emanates from her discipline of Science and Technology Studies (STS).  This is a field that studies how cultural and political values shape technological and scientific innovations and how these technologies in turn can transform society.  In her research, particular STS influences include: material-semiotic approaches such as Actor Network Theory; theories from feminist philosophers of science; and critical STS theories emanating from the work of Langdon Winner and Michel Foucault.  Within this framework, she is studying the dissolution of boundaries between virtual and material realities of political protest and is asking two overarching questions: (1) How does this phenomenon require a reconceptualization of our understanding of 21st Century social action?  (2) What is our responsibility for not only using technologies but for preserving and promoting certain forms of technological architecture and legal structures to create what Jack Balkin refers to as an infrastructure of free expression?

In her upcoming book, Technologies of Dissent, DeNardis uses case studies to analyze these issues.  One of her case studies involves distributed denial of service attacks for political protest.   These cyber attacks were famously used in Iran, Georgia, Estonia and for Google’s Initial Public Offering.  She also focuses on how citizen journalism impacts political debates and elections (see, for example, Virginia Senator George Allen’s racial slur captured on YouTube).

Another area of her research involves Internet mapping technology.  She brought up the example of Proposition 8 and the public disclosure of contributors to this ballot measure.   An anonymous web site developer (or developers) created “Prop 8 Maps” a web site identifying the names and geographical locations of individuals who had contributed to the campaign to end legalized same-sex marriage in California.  The web site was a mash-up of Google mapping software and publicly available information about Proposition 8 supporters published by the state of California.  The web site provides a graphical depiction of donors in three areas with high concentrations of donors who funded the campaign to overturn same-sex marriage: San Francisco, Salt Lake City Utah, and Orange County California.  It led to the public shaming of Prop 8 campaign contributors.

DeNardis concluded her remarks by drawing some observations from her research: First, technologies of dissent seem to be a particular locus of conflicting values; Second, technologies of dissent sometimes amplify and remix publicly available information in ways that are attracting heightened legal and social scrutiny; Third, the use of Google mapping technology, twitter, and different forms of social media and Internet architecture as part of political protests emphasizes a somewhat increasing role of private industry in communicative freedom and reflects the need to examine voluntary corporate social responsibility and a possible role of government in scrutinizing this area; Fourth, although this is not unique to new technologies of dissent, it’s important to note the caveat that the same technologies that enable new forms of protest and expression can be used by governments and others to restrict these freedoms; Finally,  it’s important to note that the use of technologies of dissent is always accompanied or even preceded by social change.

Next up was Anupam Chander.   He spoke about what he called “the Web’s possible futures”: public discourse vs. government surveillance.  He began by detailing the rich history of governments crushing “seabeds of political unrest.”  He expressed concern about governments suppressing free speech by controlling technologies of dissent.  However, he pointed to a number of examples where the Internet is leading to rich public discourse and undermining repressive governments.  He asked what the US can do to make the Internet a vehicle for public discourse rather than a tool of government surveillance.

The third panelist was Theresa Harris.  She discussed how private corporations can assist in fostering public discourse and preventing government repression.  Technology companies have largely been using an international trade approach to business, and have shirked their corporate social responsibility.  In the interest of making profits, they are using a “business as usual”/”we’re just following local laws” defense in refusing to confront human rights issues relating to the technologies they produce.  Where companies know that their tools are being used by governments to abuse human rights, they have a duty to be more responsible.  Companies need to adopt a human rights approach.  Implementing corporate social responsibility lies in, among other places, domestic legislation and international treaties.

The final panelist was Eddan Katz.  He brought up Hillary Clinton’s recent speech about Internet freedom.  This speech underscored the salience of this issue in international affairs.  Katz framed the issue of Internet freedom as “preventing disruption of networks.”  Katz noted that anonymity can be problematic but is important for political expression by dissidents and therefore should be defended in many circumstances (there are technologies, like the Tor network, that can defeat Internet surveillance).

An important message in Clinton’s speech was the need for corporate responsibility.  Katz listed numerous examples of US corporations selling surveillance technologies to repressive foreign regimes.  Katz brought up possible approaches to address this issue, including an instrumental approach and a capabilities approach.  Katz cited a good white paper on this subject called “Surveillance Self-Defense International.”

Questions and Answers:

Chander: Suppression in the US (filtering and monitoring, for instance) is not the same as suppression in countries with repressive governments.  The US allows for more open debate.  Katz: There are many similarities between the rhetoric on the war on piracy and the rhetoric on the war on terror.

Q: How can we use new media to push for human rights?  Chander: Search engines such as Google have significant power they can wield to pressure totalitarian regimes to be more liberal. Katz: Disclosing business practices and pushing socially responsible norms can help improve corporate behavior. DeNardis: China’s standards policies are frustrating interoperability.

For twitter commentary on this panel from the audience, check out http://twapperkeeper.com/a2k4/ entries for Friday, February 12 at 16:00h to 17:30h

Back to A2K4: Access to Knowledge and Human Rights main page

As Nabiha said, our interest in terrorism-related issues has to do with the barriers the government places to access.

Our interest in surveillance speaks more generally to the democratic conditions necessary for newsgathering. Newsgatherers cannot properly gather news if they know that they’re being watched. And journalists and protestors are often the deliberate targets of surveillance, alongside more conventional “threats”; see Ken Krayeske’s experience, or the experience of anti-war protestors with the TALON database.

Missed opportunities for reform include: requiring the government to show a connection to a suspected terrorist or spy in seeking Americans’ records through National Security Letters (NSLs); letting the “lone wolf” wiretapping authority expire; stopping the government from using the FISA Amendments Act to collect Americans’ phone calls and internet communications in bulk.

EFF advocates attaching the JUSTICE Act to the renewal bill when it’s debated by the full Senate.

We’re starting to see more domestic coverage of l’affaire Elliot Madison, the self-described political anarchist who has been charged with using Twitter to apprise protesters of police movements at the recent G20 Summit.

Our own Laura DeNardis weighed in via this Reuters story, highlighting the double standard between Twitter activism in Iran and Pittsburgh.

Is there a newsgathering angle here as well? Madison’s alleged tweet-crime raises First Amendment issues, certainly, and we will be particularly interested to see if it opens the “what is a journalist” Pandora’s box.

EFF has Madison’s motion seeking the return of his confiscated property.   We’ll be following this with interest…

]]> http://yaleisp.org/2009/10/86/feed/ 1 http://yaleisp.org/2009/10/dhs-databases-speech/ http://yaleisp.org/2009/10/dhs-databases-speech/#comments Wed, 07 Oct 2009 20:08:13 +0000 Adri http://lamponline.org/?p=81 Comparative Case Studies of Radical Rhetoric, according to the government’s own description, “is a research effort funded by the Department of Homeland Security (DHS), Directorate of Science and Technology (S&T), Human Factors/Behavioral Sciences Division (HFD). The goal of the research project is to determine whether various characteristics of the rhetoric expressed by groups are related to the groups’ likelihood of engaging in violent extremist activity. Researchers will collect personally identifiable information during this research effort.”

Let’s repeat that. This is an analysis of pure rhetoric, performed upon expression that is connected to personally identifiable information, in order to arrive at predictive conclusions about people who express that kind of rhetoric. Needless to say, the program raises some troublesome First Amendment worries.

The program analyzes papers, speeches, and publications of various groups. On a new media note, it will also analyze content on the political party Hizb ut-Tahrir’s website.

The DHS’s Privacy Impact Assessment of the program can be found here.

For now, let’s just leave it at that.

Some current information: there evidently are 72 state-based intelligence fusion centers, and Janet Napolitano just announced that DHS is creating a new office to support them.

Things this office will do, according to Matthew Harwood at Security Management, include the following:

“It will survey state, local, and tribal law enforcement to get feedback on what information these “first preventers” need to do their job. The office will also develop a mechanism to gather, analyze, and share both national, regional, and local threat information up and down the intelligence network. Third, the office will coordinate with fusion centers to continuously ensure they get the appropriate personnel and resources from DHS. Fourth, the JFC-PMO will provide training and exercises to build solid relationships between fusion center personnel and promote a sense of common mission. Finally, the office will train fusion center personnel to respect the civil liberties of American citizens.”

That last mission sounds great, doesn’t it?

Open gov activists have responded to the unwieldiness of PACER by proliferating a variety of alternative online law libraries, a trend that will be discussed in a Yale ISP/ACS talk today entitled: “RECAPture the Law: The Growing Movement to Free the Electronic Record,” by Princeton’s Stephen Schultze and Harlan Yu.

There’s a dark side to this sunshine story, however . . . Last fall, a 22-year-old programmer named Aaron Swartz took advantage of the government’s offering of a free PACER trial period to run a script on a library computer that downloaded (or in the FBI’s language, “exfiltrated”) massive compilations of federal court records to be released the public. When the government realized what was up, they initiated a criminal investigation of Swartz, obtaining his identity, phone number, and home address from Amazon.com — even considering staking out his house. How did Swartz find out about the investigation of him? Through a Freedom of Information Act request for his file.

For you citizen journalists and programmers out there who are curious about what your own file may hold, you can find template FOIA requests at the FBI’s FOIA / Privacy Act website. Don’t let them stonewall you by asking you to send in fingerprints either — you shouldn’t need that unless you are specifically requesting your NCIC criminal record.

More here

FBI agents subsequently executed a search warrant at the man’s home, where they seized computers, political writings and anarchist literature.

In other news, you can buy a copy of the Anarchist Cookbook on Amazon here for just $19.77
From what I can tell, it’s got no mention of organizing demonstrations . . . although it may warrant mentioning that there is a section on “electronic sabotage and surveillance.”