Sunday, October 01, 2006

Chilling effects

A creeping problem with all of these well-intended attempts to regulate abuse of the Internet, and to protect children, is the "chilling effect." That term refers to making a threat to sue or prosecute a speaker when the plaintiff or prosecutor knows that the defendant does not have the resources for effective defense -- that is, to bully the defendant from speaking because the defendant did not "compete by the rules" to achieve power.

There is a website that keeps track of abusive cease-and-desist letters, and that is .

Examples of legislation that could provoke a "chilling effects" fear of prosecution or of civil fines are the Child Online Protection Act of 1998 (COPA), and the earlier Communications Decency Act (CDA), part of which was struck down by the Supreme Court in 1997. I have sat in on Supreme Court oral arguments on both cases (the second event in 2004 summarized here).

The most complete summary of the status of COPA on my sites is here. You can follow the links to all of the court papers and opinions.

A new kind of chilling effects problem has crept into the media reports within the past year. Employers have been reported checking job applicants' social networking profiles and personal weblogs as part of informal "background investigations." Although their incentives seem justified for publicly visible jobs, these raise troubling concerns about trying to enforce social conformity. Employers have been particularly concerned when they find "self-defamation" on applicants' sites, where a person "brags" about rebellious behavior in order to protest rules or laws that he or she views as unjust. A couple of NBC "Law & Order" (fictitious) episodes have taken this further, pointing out that people could be prosecuted for enticing others to commit crimes with their writings on the web. Now, this raises still another question: when a crime novel is formally published or movie made, usually no one is concerned about copycats (there are exceptions), but an amateur could be accused of inciting a crime, given his circumstances. This raises new questions about freedom of speech that we have not seen before. Do individuals have fewer rights than established corporations or the established "press"? The answer seems to be, sometimes.

In prosecution, the chilling effect comes across partly because the accused has few rights until actually charged and brought to formal trial. Some states do not allow indictments in secret, but federal procedures do. A defendant can be charged, almost without warning and secretly (without the right to respond early in the investigation) and face ruinous expenses even if the prosecution is speculative or frivolous, and that is why the Supreme Court often is concerned that a law like COPA may be "overbroad" and invite frivolous prosecution from someone with a political agenda. In practice, however, most secret investigations occur only when the government can argue that there is a genuine public safety issue. Here is an American Bar Association (ABA) site with faq's on federal procedure. It is not that comforting.

All of this is well known to libertarians.

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