CCR Symposium: We Are The World
I’d be very interested to read international responses to this paper and the consequences of the actions suggested in it. It’s always intrigued me how debates on speech-related issues differ from place to place, and how what’s taken for granted in the US, for example, is not so in Europe. As so much of the published work on Internet law comes from the United States, it’s only natural that First Amendment considerations be a strong influence on such writing. Harassment, too, can be quite localised, including in some of the situations referred to in Cyber Civil Rights. However, there’s still the obvious crossborder nature of the Internet, meaning that if a problem is identified, the solution – or the constitutional constraints on the solution – require some sort of consideration of non-US law and indeed non-US impact. Here’s a first attempt at opening up that conversation.
Now this is a road that we have been down before, not just for free speech but even in the shorter (but equally dramatic) history of cyber-Internet-IT-tech law. In the case of libel, for example, there’s the still-controversial Australian finding in Gutnick that publication takes place at the point of download. The sky didn’t fall in and people still publish controversial things on the Internet. On the other hand, there’s a good campaign going at the moment (in the US and in the UK) to do something about ‘libel tourism'; an issue so obvious that it was a punchline in a South Park episode (Trapped in the Closet, episode 9.12, if you’re curious), but still unsolved and certainly made more pressing by the availability of online publications (and the daft multiple publication rule upheld by the European Court of Human Rights last month.
So what does this mean for the sort of behaviour mentioned in Prof. Citron’s paper? A few different things, I would suggest, without going too off-topic:
First of all, the US debate needs to include the idea of looking beyond US borders – not to concede that anything might possibly be more perfect than the First Amendment (I’ll be run out of town if I say that here!), but simply from a practical point of view. Whether you support, oppose or remain undecided on cyber-harrassment, s 230 or data retention or anything else, it’s clear to me that a US-only set of actions (or non-actions) will not be the final word. Indeed, contrary to the argument associated with Goldsmith and Wu’s Who Controls The Internet?, the rebordering of the Net is not complete here, as noncommercial expression (whatever the topic) is probably the most capable of being relocated to a more favourable jurisdiction, as compared with something like online gambling, where there’s an obvious need for local intermediaries (credit card, etc).
In addition, we can note some existing differences in practice between, say, the US and the European Union. Take for example the question of intermediary liability that a few of us have already referred to. Under the EU’s directive on e-commerce (which has, in the usual way, been transposed by the member states into domestic law), which Citron alludes to at note 399, there are three categories when it comes to liability: ISPs, caching and hosting. ISPs are treated very differently to the hosts; the former are generally immune while the latter are not in the case of actual (and sometimes constructive) knowledge. Now I have many problems with the Directive, but within the European approach to freedom of expression, it does have a logic to it, protecting free speech but with strings attached. For those participants who are looking for an apparently workable example of conditional immunity, this might be one. Quite a few of the major US players with EU presences quietly play by these rules, rather than circumventing them through trying to run everything through the US. On the other hand, the EU system can be criticised as taking the dodgy DMCA system (without the safeguards, such as they are) and applying it to everything, not just copyright. Thoughts?
Next, while this debate is happily running along in Concurring Opinions, and plucking one example to illustrate a point, the UN Human Rights Council is still beating the drum of ‘religious defamation’. This is so far from the agonising over whether online threats need a new approach or are either overstated or capable of being dealt with by existing law that it may as well be on another planet. To be honest, if this approach prevails, the suggestions made by Citron will have next to no impact on the rights of speakers as compared with it.
Even the goodies and the baddies are not in obvious places: take for example ‘Anonymous’ (discussed in the paper). We’re hardly dealing with a single mind here, so expecting any sort of consistency is difficult, but I was quite impressed with some of the ‘anti-Scientology’ campaigns that ‘Anonymous’ was/were involved in last year. The campaigns were creative, decentralised, communicated a valuable political message and enriched public debate. Yet does that excuse the series of incidents collected by Citron or negate the rights questions she raises? Of course not. Another point is how valuable anonymity has been to political dissidents across the world, and how there is, in my estimation, broad support for the use of anti-censorship tools such as anonymous proxies. Many of those tools involve some cooperation from US residents, knowing that at present it is relatively difficult (but not impossible) to rely on US law to expose the real ID of a foreign poster. If dealing with the US civil rights problems means that the world loses an important weapon against censorship, there must be a responsibility on those who debate changes to US law and policy to take this into account.
Finally, the elephant in the room, and one that I am perhaps duty-bound to make as the sole European in said room (when I’m not clogging up the Internet, I’m a lecturer at a UK university), is that of the impact of US law in non-US courts. Brian Fitzgerald (a wonderful authority on Australian cyberlaw) responded to Gutnick (and more importantly, responded to the global reception of Gutnick) with a gentle critique in this 2003 paper of ‘dominance by American legal principle’ and a suggestion that judges approach questions like transnational defamation from a starting point of transnational constitutionalism. It’s a paper worth reading, and the argument is quite nuanced and of some use to the question I’m wondering about here. Indeed, it’s perhaps even more pressing when it comes to cyber civil rights, as whatever about the crosscultural aspects of defaming an Aussie businessman in the Wall Street Journal, surely any steps to remedy the marginalisation of groups or the crowding out of unpopular views require some understanding of the non-US world. So in short: Cyber Civil Rights & the rest of the world: discuss!
(A quick word on comments, as it’s proving to be a controversial one. Although I blog without a comments policy and allow everything bar spam on my own obscure blog, I followed the no-comments default on my first post, in the same way that I would take the lead from a panel chair regarding the Q&A format in a realspace symposium. Seems fair. In recognition of the fact that most of my fellow participants are in fact accepting comments, this post is open (for now) and is written to encourage you to supply your own answers; however, this is not an invitation to respond to other posts or themes of the paper, or indeed to the question of whether comments should be open or closed!)