from the wonder-how-that-impacts-his-new-business dept
You may recall that a few weeks ago, we wrote about a spectacularly bogus lawsuit filed by Jonathan Monsarrat against a bunch of online commenters who had discussed Monsarrat's arrest a few years earlier, along with the beautifully epic response from lawyer Dan Booth of Booth Sweet LLC (also known for its Prenda fighting accomplishments). That was a long post, because there was a lot of crazy to cover, so I suggest you go back and check it out for all of the details, but it included (among other things) bogus copyright claims (in a state court, where you can't really do that), an apparent ignorance of section 230 of the CDA, what appeared to be an attempt to rewrite history as noted in press reports directly from police reports, a questionable relationship between Monsarrat and his lawyer (possibly more of a business relationship rather than an attorney/client relationship), a suggestion that the lawsuit was an end run attempt at identifying anonymous critics as part of a marketing scheme for a new "anti-cyberbullying" service that Monsarrat was starting with his lawyer, and a variety of other things.
As we noted, that "epic response" from Booth wasn't filed in court, but rather was sent in a letter to Monsarrat's lawyer, Mark Ishman. It appears that Booth, representing one of the named defendants, Ron Newman, was getting ready to officially file his motion to dismiss with the court (unfiled documents embedded below), but right before they did so, Monsarrat and Ishman filed to dismiss the case with prejudice (meaning they can't file it again). Newman points out that there was no settlement at all, so it appears that Ishman and Monsarrat realized that this case had almost no chance of succeeding (and, perhaps, a fairly decent chance of blowing up in their faces). I wonder what this will mean for their "anti-cyberbullying" service...
Cyberbullying seems to be a popular moral panic point for many politicians, who are just sure that (a) it's a huge huge problem impacting lots of kids and (b) the "cyber" element somehow makes it much, much worse than everyday bullying among kids. We've seen various states like Arizona and Louisiana pass absolutely ridiculous First Amendment-destroying laws trying to stamp out the scourge of people being jerks online. All of this despite the evidence that cyberbullying is a pretty minor thing, and the laws do little to stop what actual bullying happens online.
While electronic annoyance of an adult becomes criminal only if it continues after a request to stop, no such triggering provision is included for behavior that may annoy a minor. (And as I read it, there is no requirement that the defendant know that the person being subjected to intentional emotional distress is a minor — engaging in a vigorous “flame war” with a Maryland resident might turn out to be criminal if the username “ParentInLinthicum” turns out to conceal a teenage user.) Exceptions are made for speech that is intended to express political views or convey information, a curious pair of exemptions in that it has long been assumed that our First Amendment protects many types of seriously annoying speech other than those two.
In the long run, these kinds of laws only serve to create massive chilling effects on speech, and will, undoubtedly, be used to cause much more trouble for other children. As Walter Olson notes:
We are supposed to support this law — and some lawmakers I admire did support it — to show that we care about children. Once on the books, however, this law will assuredly ruin the lives and futures of other kids who will be the subject of investigations and prosecutions, and not all those kids are monsters whose ruin we should accept with equanimity
Yes, bullying sucks, but passing a law that ignores the First Amendment is never going to stop kids from saying mean things to one another -- though it might just put them in hellish situations in which they're prosecuted for doing things that kids do.
You know what's a bad sign? When you're a state legislature, and you pass what's clearly an unconstitutional law that criminalizes using technology to "annoy or offend" others -- and then you have to scramble after-the-fact to amend the bill you already passed. Yes, thanks to a rather loud public mocking of Arizona politicians for ignoring the First Amendment in its internet censorship bill, the Arizona legislature is trying to amend the bill quickly.
Here's a thought, though: if you passed a bill so bad that people around the globe are mocking you, perhaps it suggests you don't know what you're doing. At that point, shouldn't you back away from mucking with the internet, and leave that to the professionals who actually understand technology? Somehow, diving back in and pretending that this time you'll get it right doesn't inspire confidence. And, in fact, the details suggest that any amendments considered at this point will almost certainly still be First Amendment violations.
“Even so narrowed, the statute is unconstitutional. You simply cannot prohibit emails that are said to be intended to offend. That violates the First Amendment flat out,” said University of Chicago Law School professor Geoffrey Stone, who specializes in constitutional law. “You can prohibit email if the recipient has requested you to stop sending them. That’s different -- but that’s not what this says.”
Still, I think the most ridiculous words of all come from Rep. Steve Farley from Phoenix whose statement on the bill is really quite stunning:
"I know people are focusing on unintended consequences of the bill, but I don’t think that's realistic," Farley said. "I think this is a wakeup call that we should be civil online and in society in general. I don’t think it's right we should ever be able to threaten violence against each other online."
I love how he doesn't explain why the unintended consequences aren't "realistic." He just insists that's the case. Of course, anyone who's actually been around policymaking (especially when it comes to technology) knows that there are always unintended consequences. And it's not hard to find unintended consequences of a bill like this that broadly outlaws "annoying" people with electronic devices.
But even more ridiculous is that second half. You don't legislate civility. We don't make a law saying you have to say "please" and "thank you." Look, some people are obnoxious jerks out there. That's not a legislative problem. Finally, his claim that people shouldn't be able to threaten violence against each other might have some weight if the bill was actually limited to people threatening violence. But it's not.
from the do-politicians-even-read-these-things? dept
A new bill has passed through the Arizona state legislature that would allow for broad censorship of the internet. As with many such bills, this one is weakly "disguised" as an attempt to deal with online "bullying" and "stalking." However, as with many such attempts to outlaw "being a jerk" online, this one goes way, way too far. It says that it's unlawful to "annoy or offend" someone online, for example. The bill is so bad that even Media Coalition -- a group backed by the MPAA and the RIAA -- is arguing against it.
The specifics of the bill take an existing law meant to stop harassing phone calls and applies it broadly to the internet. As Media Coalition points out, the bill:
... takes a law meant to address irritating phone calls and applies it to communication on web sites, blogs, listserves and other Internet communication. H.B. 2549 is not limited to a one to one conversation between two specific people. The communication does not need to be repetitive or even unwanted. There is no requirement that the recipient or subject of the speech actually feel offended, annoyed or scared. Nor does the legislation make clear that the communication must be intended to offend or annoy the reader, the subject or even any specific person.
As Eugene Volokh notes in his own discussion of the bill, a telephone is a one-to-one device. The internet is many-to-many, and it makes for a very different situation when you're talking about content designed to annoy or offend:
Telephones are basically one-to-one devices, so a phone call that uses profane language to offend is likely meant only to offend the one recipient, rather than to persuade or inform anyone; but computers used to post Facebook messages or send Twitter messages or post blog items can offend some listeners while persuading and informing others.
So, under the statute, posting a comment to a newspaper article — or a blog — saying that the article or post author is “fucking out of line” would be a crime: It’s said with intent to offend, it uses an electronic or digital device, and it uses what likely will be seen as profane language (see, e.g., City of Columbia Falls v. Bennett (Mont. 1991)). Likewise if a blog poster were to post the same in response to a commenter’s comment. Likewise if someone posts something in response to an e-mail on an e-mail-based discussion list, or in a chatroom, or wherever else. (Note that if “profane” is read to mean not vulgarly insulting, but instead religiously offensive, see City of Bellevue v. Lorang (Wash. 2000), then the statute would be unconstitutional as well.)
The same would be true if someone posts something lewd in one of these places in order to annoy or offend someone, for instance if he posts a comment on a police-run public discussion page that says something like “the chief of police can suck my dick,” to borrow subject matter from a prior Arizona telephone harassment case. And note that, given that case, the speech need not even be about one of the recipients, so long as it’s intended to annoy or offend one of the recipients.
It still amazes me that politicians think that these are good ideas. They're grandstanding against "cyberbullying", of course, but if they're going to pass laws that have a major impact on the internet, can't they at least talk to someone who understands this stuff first?
A few years back, we covered the Lori Drew case, involving charges brought against a woman who stupidly set up a fake user account on MySpace to try to find out what was going on with a girl the woman's daughter had some issues with. The "fake account" was of a boy who the real 13-year-old girl became very friendly with. At some point, the "boy" turned on the girl, said some nasty things to her -- including "the world would be better off without" her -- and cut off communications. The girl committed suicide soon after. Lots and lots of people wanted Lori Drew brought up on charges for the girl's death. While we found Drew's actions to be incredibly immature and ridiculous, we were much more concerned with efforts to pin the suicide on her. Of course, the law wouldn't allow such a thing, so prosecutors trumped up some charges, involving a claim that she committed a felony by not following MySpace's terms of service. She was found guilty of a misdemeanor (not felony) charge -- which was then dropped by the judge, who wasn't comfortable with the ruling.
Of course, this did lead to a flurry of attempts to pass "cyberbullying" laws -- which try to make it a crime of some sort to be a jerk online. This is problematic for a variety of reasons, especially since it raises significant First Amendment issues, in part because "being a jerk" is extremely subjective. But the worst part is that much of what is considered to be "jerky" behavior is determined after the other party commits suicide. This is extremely problematic -- because whether or not your actions are seen as criminal depends almost entirely on how someone else reacts to them. If they shake off your actions, then you're fine. If they commit suicide, you get punished. Thus, the incentive then is actually for kids to seriously hurt themselves, if someone acts in a mean way towards them, as that increases the likelihood of the bully getting punished. That doesn't sound like a good incentive system.
I'm thinking about all of this after hearing about the guilty verdict against Dharun Ravi -- the Rutgers student who surreptitiously filmed his roommate engaged in a sexual encounter with another male. That roommate, Tyler Clementi, later killed himself, once he found out about it being filmed. Like the Lori Drew case, much of the prosecution focused on the dead teenager -- and you can understand why. It's a horrible (and horrifying) story. But, again, the reaction is much more based on the end results, rather than the initial action. No doubt, what Ravi did was despicable, but is it really criminal? Law professor Paul Butler has an excellent opinion piece explaining why this is an overreaction. He notes that Ravi was clearly immature and did an obnoxious thing in invading his roommate's privacy, but the desire to see him locked up (and apparently there's a good chance he'll be deported to India, despite not having lived there since he was 2 years old) is almost entirely because of Clementi's tragic death:
Let's be honest. A lot of people want a pound of flesh from Ravi because they blame him for Clementi's death. Tyler's reaction was tragic, and it was idiosyncratic.... No judge in the country would have allowed a homicide prosecution, because, legally speaking, Ravi did not cause the death, nor was it reasonably foreseeable. Of the millions of people who are bullied or who suffer invasions of privacy, few kill themselves.
For his stupidity, Ravi should be shamed by his fellow students and kicked out of his dorm, but he should not be sent to prison for years and then banished from the United States.
As Butler notes, the rush to the criminal justice system, and the focus on blaming Ravi, takes us away from a more reasonable place in thinking about how to deal with these things:
The problem with broad laws like New Jersey's is that they come too close to punishing people for what they think. Bigotry, including homophobia, is morally condemnable, but in a free country, it should not be a punishable offense....
Ravi did not invent homophobia, but he is being scapegoated for it. Bias against gay people is, sadly, embedded in American culture. Until last year people were being kicked out of the military because they were homosexuals. None of the four leading presidential candidates -- President Obama, Mitt Romney, Rick Santorum, Newt Gingrich -- thinks that gay people should be allowed to get married. A better way to honor the life of Clementi would be for everyone to get off their high horse about a 20-year-old kid and instead think about how we can promote civil rights in our own lives.
Though a national conversation about civility and respect would have been better, as usual for social problems, we looked to the criminal justice system. The United States incarcerates more of its citizens than any country in the world. We are an extraordinarily punitive people.
Indeed, as tragic as Clementi's death is, it did inspire thousands of people to act in a positive manner against homophobia by launching the It Gets Better project -- a very powerful way that tons of people have gathered to try to pass along the message to bullied teens (mainly from the LGBT community) that things do, in fact, get better. That response is a way of trying to deal with the actual problems. Going after Ravi with these charges just seems like a punitive action based on what Clementi did after Ravi's clearly childish and obnoxious actions. It certainly can be difficult to separate out what Ravi did from what Clementi did later, but in a society based on law, that's what we're supposed to do. Being a jerk should get you shunned, but not put in prison.
from the you-been-reported-to-the-cyberpolice dept
If you happen to keep up with the latest internet memes (you know who you are), you almost certainly have heard about the whole "ya dun goofed"/Jessi Slaughter saga. If you (lucky you) aren't aware of this, and wish to find out (and, I warn you, you may be better off not knowing about this), all the details are at that link. Frankly, after watching the key videos, embedded below, the whole thing really feels faked for the sake of attention. The whole thing is so over the top that it feels like a calculated attempt to get viral YouTube fame.
As Kenyatta notes:
What's more interesting to me is the fact that just after her very public breakdown, she went back on Stickam a few hours later, completely unfazed by the insults being hurled at her.... The chat is filled with the kind of stuff that parents would call 'bullying,' however, she's totally ignoring it all. Clearly the internet has created a new kind of teenager, able to filter out the kind of noise that would "ruin" the life of folks like Star Wars Kid just years before.
That seemed interesting to me, though, I'm not sure I buy that. First of all, it's a single anecdote involving a single person and (again), I'm still not convinced this is real.
After reading that interview earlier, I had considered doing a post about that claim of the "new kind of teenager," but figured that the "evidence" was so weak, it wasn't worth it. However, I was then amused to look at the submissions for Techdirt, and find a note from reader athe pointing to a professor in Australia who is using the saga as evidence of why the internet should be censored. In other words, he looks at the same videos and comes to the exact opposite conclusion as Kenyatta did.
Where Kenyatta sees a teenager who can filter out bullying and get on with her life, Professor Matt Warren, looks at it and sees a horrible, out of control internet that needs to be censored.
Professor Matt Warren, the head of Deakin University's School of Information Systems, said as long as parents who don't understand the internet kept giving their children access to it, there needed to be ways to control its use.
"You simply can't have free access to the internet," he said.
"It has to be controlled, censored and people have to be held accountable for their actions on it.
"We punish people who drink, we punish people who speed and we have to implement laws to that effect when it comes to the internet."
Thankfully, people are taking professor Warren to task in the comments on that article, noting that censoring Jessi wouldn't have helped. The Australian internet filters certainly wouldn't have stopped the ability of a girl to go online and make some videos. The real issue (if this story is actually real -- but it would apply to others as well), is that this is yet another example of where better parenting, rather than Big Brother governing, would probably help out. And, no, that doesn't mean spying on everything a kid does, but getting parents to at least talk to their kids about what happens online, and what their kids are doing online, along with the risks associated with being online.
Back in May we wrote about how Louisiana was the latest state to try to pass overly broad anti-"cyberbullying" legislation, that would make it illegal to say anything online that might "embarrass" anyone under 17. With a few modifications that law has now been passed. They (thankfully) removed the "embarrass or cause emotional distress" part, but still left in that it's illegal to communicate "with intent to torment or intimidate" which seems pretty broad. No more trash talking on IM, kids.
Meanwhile, Glyn Moody points us to a new law in Scotland that outlaws "indecent communication" online. The law says you can't say anything sexually related to someone without first getting consent. While, the intentions are good, the reality is that this will almost certainly lead to problems:
In our culture, it is not normal to ask people for permission to say something sexual during the course of a facebook chat or a conversation in a bar. "Do you mind if I deploy an innuendo" just wouldn't sound right. And quite frankly it shouldn't.
Whether people get off with each other in bars, or engage in mundane msn conversations that degenerate into bad internet sex, people frequently make the transition from polite conversation into something more erotic. And this very often necessitates somebody saying something on a whim, somebody communicating some sexual feeling in the hope that it will be reciprocated. And sometimes that means saying something under circumstances that don't quite match up to a "reasonable belief in consent".
The more and more governments try to regulate how people talk to each other online, the more and more ridiculous it's going to look.
...would make it a misdemeanor to transmit any Internet communication or other computer communication "with the intent to coerce, abuse, torment, intimidate, harass, embarrass, or cause emotional distress to a person under the age of seventeen." This applies without regard to whether the message is communicated to the person, to some other individuals, or to the public at large. So under the law, all of these would likely be criminals (though, under a recent amendment the adults could be jailed for up to a year, while the minors could be jailed for up to six months):
A girl who sends her under-17-year-old boyfriend an e-mail telling him what a schmuck he is for having cheated on her, and hoping that he feels ashamed of himself.
A blogger, or a newspaper columnist, or an online commentator, who publishes something condemning an under-17-year-old criminal, hoping the criminal feels embarrassed and ashamed as a result.
A public or private school official e-mailing the parents of an under-17-year-old student a message about the student's misbehavior, hoping that the student will feel embarrassed and change his ways.
Parents e-mailing their under-17-year-old children telling the children that they should feel ashamed of some misbehavior.
A professional or amateur music critic or sports reporter writing a harsh review of an under-17-year-old performer's or athlete's behavior, hoping that the review will embarrass the performer or athlete into behaving more ethically, professionally, or competently.
I don't see how this survives a First Amendment challenge, but when you're grandstanding around something that gets press coverage like "cyberbullying," it's unlikely that the politicians supporting this even recognize or care about the unintended consequences.
If you hadn't noticed, there's been a growing moral panic around the concept of "cyberbullying", with various states passing laws against it and Congress even considering it as well. And, of course, if you read stories in the news these days, you might think that cyberbullying is happening everywhere and that It Must Be Stopped at all costs To Protect The Children.
However, as Larry Magid is pointing out, actual studies on the issue show that so-called "cyberbullying" is on the decline and most kids are good kids who are as disgusted with the concept as adults. In fact, some research suggests that all of the stories about this "cyberbullying" threat may actually make the problem worse. That's because kids are more likely to engage in the practice if they think it's common. And, even though it's not common today, all the press reports may spread the idea that it is. In the end, as Magid points out, as with other moral panics, the real solution tends to be parental education -- not misguided laws.
In the wake of the whole Megan Meier/Lori Drew thing, politicians started shoving each other aside to introduce "anti-cyber bullying legislation" that would outlaw being a jerk. The whole thing was pretty ridiculous. People are going to be jerks. You can't outlaw it. Beyond just the First Amendment issue, the simple fact is some people will act like jerks some of the time. It happens. It doesn't mean that it's good, but that also doesn't mean that you can just outlaw it. Of course, seeing as this is the type of legislation that politicians like to claim is "to protect the children" and gets them in the press, there's always a chance that laws like this get some momentum. Thankfully, it looks like our Congressional Reps. at least recognize what a dumb idea this is. While Rep. Linda Sanchez insists that such a law is needed, it appears that other politicians are not very interested, pointing out the First Amendment issues, as well as the unintended consequences of making such a vague concept a criminal offense.