Thursday, December 28, 2006

Dreamcatching -- horror fiction can provide a useful legal analogy


I coined this term, somewhat as a loose analogy to the knitted object in Stephen King’s horror novel “Dreamcatcher” (and associated movie), along with the process of “possession” of the Maine woods campers by alien spirits, with the idea that a website visitor or moviegoer for that matter can be “possessed” by experiencing the writer’s or filmmaker’s emotions in a piece when the artist portrays himself. (The film is indeed memorable also for the graphic "turd weasels".) I am digressing here somewhat the way Clive Barker does in the first paragraph of his epic 1991 fantasy novel "Imajica", when he postulates that any “fiction” has room for only three players at a time. Else, let there be contention, the dread of any database designer.

Seriously, there has been a lot of concern about the way people present themselves online. The most common remark in the media has been about teenagers and college students showing their rebellion in videos that the post on social networking sites (like Myspace) or on Youtube, and then employers check these for antisocial or illegal behavior (like underage drinking or drug use) and refuse to hire them, or fire them after the fact. This gets to expand to other forms of expression the web. In the past eighteen months, this has become a serious problem. Companies are popping up to offer the ability to monitor and fix online “reputations” like they could be cleaned like computers are cleaned from viruses.

This sounds far and away from COPA, but maybe not so far. Remember the problem posed by the military “don’t ask don’t tell” policy: a statement anywhere (President Bill Clinton had first, in 1993, proposed the wording “an open statement” – which would certainly include a statement on a blog or social networking profile) of a soldier’s homosexuality would create the “rebuttable presumption” that the soldier has a “propensity” to engage in (for the military) illegal homosexual acts. It is true that the consequences of this policy are civil only, and don't by themselves lead to UCMJ prosecutions or bad discharges (they can lead to discharge SPIN codes). There is the concept that in the environment of forced intimacy in the military, some kinds of personal statements and evocations will invade on the emotional space, socialization (and "unit cohesion") of other soldiers.

The analogy carries over into other areas, and some of the appellate court rulings on DADT so far could actually set legal precedents. It is important to note that for the military, the "presumption" is created by U.S. statute (passed in 1993), whereas in these other areas the presumption is more of a common law issue. For teachers, and for employees in other sensitive fields, there are other behaviors that are particularly problematic – teachers, after all, usually work with minors. So let’s say that one wants to make some political points about age of consent laws, and places online a fictitious script that makes the points, but uses himself (perhaps with a different name to escape the search engines, but still identifiable form the content of the story) as a character for demonstration purposes. It’s a convoluted subject, but the visitor (or principal or even a minor student) probably has the legal warrant to assume that the writer, if a teacher, has an unusual propensity to engage in some prohibited behavior. That’s because libel law in publishing (the “Bell Jar” and “Touching” cases) means that any identifiable person can be defamed even in fiction. Can a person defame himself? Maybe not in an intellectual narrative that disclaims any misinterpretation, but fiction, drama, screenplays, or film are supposed to “possess” the visitor and cause the visitor to apperceive the writer’s emotion. The speaker, legally, could be said to be trying to have it both ways.

If the visitor is a minor, you get back into COPA territory. The mapping is a bit complicated, with “implicit content” -- serious value, the whole, and the minor’s less mature idea of “prurience.” There could (because of “elimination reasoning”) also occur legal questions about enticement, although court opinions in some of the (such as NBC Dateline) chat room cases do seem to say that there has to be clear intention to start a contact with a specific minor. But it has gotten to become scary stuff in the past year or so.

I can envision that content labeling (as developed by ICRA and maybe augmented by other concepts in the semantic Web) could be developed (in conjunction with browsers) to the point that when one of these potentially “incriminating” content items is opened, the visitor is first served with a disclaimer that clear states that the content is for demonstration only. Of course, that won’t help with a video clearly showing the subject engaging in an illegal act like underage drinking.

The whole question, arising in the major media since about the middle of 2005 or so, of viewing content according to the motives of the speaker (instead of just its objective content) is quite disturbing and can chill speech on the web, if we start using it as a test of social conformity. When is speech “literature” and when is it “dress”?

Thursday, December 21, 2006

COPA: More on publication and distribution

There are a few concepts in the previous post that need further refinement.

Publication normally means, making something available to anyone in the public, either for free or for a fair market price, as with a book or periodical that may be purchased in retail or through e-commerce. The concept is still meaningful if prospective purchases are limited by age (for example, to those 18 and over).

There is another sense in defamation law where “publication” means giving information (either verbally, or in writing, such as in print or in an IM or email) to any other person who understands it. “Understanding” is itself a tricky concept, because it can invoke ideas like implicit content and the context provided by known external circumstances.
But the concept that is most important in COPA is the first one.

In the movie business, the roughly corresponding concept is called distribution, or sometimes, release. Most films are produced by companies distinct from the companies that release or distribute them. Movies can have different distributors in different countries and even different distributors for DVD’s. Rapid consolidation is common among these companies. However, sometimes a film producer can organize a theatrical showing himself, or sometimes his own DVD distribution through video retailers. But in that case, of self-distribution, the concept of distribution and production is the same.

Books also have distributors (like Ingram), that fill orders for bookstores and e-commerce outlets. But with books the important concept is publication.

With the web, and with a personal blog, social networking site profile, or even personally owned website, the concept of publication equates to posting the material on the web (through FTP or an interface like Microsoft Front Page, or perhaps through other products like Pust-Button Blogger, EasySite or Image Café).

Monday, December 18, 2006

COPA: The right to publish

The Dec 25 2006 Christmas Day issue of Time certainly comports with the concept of the "right to publish". Time named its person of the year as the "Us" or "Me", the Internetpublisher. It's upbeat, but then there are problems like COPA.

It’s well to go back and read the text of the First Amendment occasionally. Here is the Findlaw URL that I bookmark:

I’ve often noticed that “freedom of speech” and “freedom of the press” are enumerated separately. The right of peaceable assembly, and petition to the government are also listed specifically. In practical terms, freedom of speech has been more often associated with associative behavior (“expressive association”, as in the Dale v. Boy Scouts case) centered around sharing common values, and with collective speech through organizations and lobbyists. There are even some arcane issues for labor unions now with the mandatory union dues rebate issue (where individual workers object to specific political activity of unions).

“Freedom of the press” may be a more specific right than the generic “freedom of speech.” To a novice, it sounds like a rewording of “the right to publish,” which sounds like a critical concept in the age of the Internet, free entry, and search engines.

But the “press” is normally understood as an established institution, credentialed and qualified, with some formal controls on how information is disseminated to the public, and formal standards or journalistic objectivity. “Amateur” speakers on blogs and social networking sites are not part of the press as commonly understood, although there are debates about this. The Electronic Frontier Foundation maintains that bloggers may be journalists, and conversely. (Link: ). Many companies that enable self-publishing and cooperative publishing obviously publicly support the idea of a “right to publish.”

Literally, this train of thought could mean that only the established press has a constitutionally determined fundamental right “to publish.” In practice, the distinction has usually been applied in circumstances where ordinary “civilians” seek physical access to classified areas or combat areas, as in the case of the teenager who went to Iraq on his own. Only professional journalists with “press credentials” can get into certain areas legally.

It would seem possible, in COPA, to maintain that even amateur publishers should have the financial strength to provide the protections to prevent unauthorized open access from minors. The government made this suggestion in the trial a couple times. Perusal of Supreme Court COPA opinions from 2002 and 2004, however, suggest that the Court would look carefully at any excessive burden placed on small speakers in any “least restrictive means” analysis. Of course, literally, that could put smallfry without enough revenue down. It would seem plausible that share hosting ISPs could develop the methods to access geographic systems (quova), ID verification systems (Idology), or even content labeling, and offer them to subscribers, spreading the costs among many customers to make them reasonable. However, more software development and corporate project collaboration would have to occur to make this possible. ISP’s ought to start taking an increased interest like COPA. In general, their AUP’s contain terms that would prohibit subscribers from activity likely to result in prosecution, so even the abstract fear of prosecution, maintained by the COPA plaintiffs, can become a practical issue.

Related posting

Picture: Everwood stars "Ephram" and "Bright" in their Aug. 2005 appearance at King of Prussia Mall near Philadelphia (ironically, the COPA city). I got a chance to talk to both of them about "don't ask don't tell" and COPA, as I wore a black-and-red EFF T-shirt. They addressed their signatures on the picture page to "EFF".

Monday, December 11, 2006

Other laws and bills roam around COPA

There are several other bills to watch, such as S1505, the Internet Safety and Child Protection Act of 2005 (introduced by Senator Blanche Lincoln, D-AR. The bill would require age verification of "adult" websites, prohibit credit card companies from processing transactions without age verification tags, pass a 25% tax on pornographic transactions and establish an "Internet Safety and Child Protection Trust Fund." The Act so far is somewhat nonspecific as to how with would determine what is a pornographic web site in a gray area situation (I hope that does not include this site!!), and enforcement would be left with the Federal Trade Commission. There are troubling concerns that verification schemes could invite identity theft liability problems. The bill is supported by an adovacy organization called "Enough Is Enough."

There are other important bills such as S2426, the Cyber Safety for Kids Act, which would require adult domain names to be identifiable with the Top Level Domain names, and H5319-DOPA. An important law already in force is USC 2257, requiring detailed record keeping of models and actors in websites with visual adult material.

I have details about these (with other links) from my doaskdotell website, at this link.

Saturday, December 09, 2006

COPA: theories about teenage pruning

Nora Underwood has a detailed article "The Teenage Brain: Why adolescents sleep in, take risks, and won't listen to reason" in the blue-covered November 2006 issue of the Canadian publication, The Walrus. The link is here.

The article describes the process of brain neuorlogic pruning which starts roughly at puberty. Brain circuits have been added, but now they are fine tuned, with some redundant or unproductive circuits eliminated. It's a ruthless process, somewhat like corporate downsizing after mergers. People with gifts need to nurture them during this period; adolescence is a particularly important period for developing performance and memory skills, as in music, and thinking skills, like in mathematics, or athletic ability, as in team or individual sports. The brain is not fully grown until past legal age, until about age 25 (old enough to be well into law school or medical school).

Sexual orientation (especially in boys) seems largely underway even before the pruning starts, according to the best evidence. I have a blog discussion of that here., with a perspective from my own experience. Nevertheless, the whole concept of HTM seems subject to analysis according to emerging science about the growing child's and teenager's brain. Already, the law, in criminal areas, is questioning the concept of trying teens as adults and exacting maximum penalties for the same offenses.

COPA, according to most of the defense arguments offered by the government, focuses largely on "commercial pornography". I would be concerned if the "average person" raising kids will make such a sharp separation. (I haven't encountered any testimony about pruning in the trial record, but I could have misse it, because there is so much. This sounds like a "new" issue that could come up in Congress very suddenly.) There are many ideas that parents don't want their kids to know about too early. (Think back how long it takes parents to tell "the truth" about Santa Claus and the Easter Bunny.) There are also other problems where religion and science come into conflict (creationism, intelligent design, etc.) The "reason" or objectivist approach (especially in a globalized, individually competitive world) is to make all information available in open source equally, and let the chips fall where they may. Obviously, this does not sit well with many people and presents issues with respect to minors, which may or may not fall outside of the scope of COPA. The "free entry" issue with which people can enter the self-publishing field and reach minors (whether intentionally) by search engines complicates or enriches the issue (depending on how you look at it.) All of this remains to be seen.

There is a disturbing undertone to the "pruning" theory for speakers. That is, that certain subject matter or "implicit content" when uttered in a public space is harmful to the immature, and to the vulnerable. The vulnerability concept contages, especially given the extremely wide range of maturity and cognition at almost any (minor's) age: is that the "problem" of the immature person, of his parents, of society, or of the speaker who gains by public exposure or who perhaps just defends himself in public.

Thursday, December 07, 2006

COPA: Case Closed, and Cry Wolf

At the close of business today, Pearl Harbor Day, Dec. 7, the official trial record for the (Child Online Protection Act of 1998) COPA Trial in Philadelphia was to be closed, with all submissions due. Oral arguments had been made on Monday Nov 20, as noted in previous postings. As far as I know, my exhibit is still in the trail record. Several of the plaintiffs (including some, including me, with a lot of LGBT content) presented exhibits but did not testify and were not deposed.

I have heard various speculations about how long a ruling would take, but February 2007 certainly sounds reasonable. We have rehashed the various elements of the legal questions in the trial testimony, and various blogs of the plaintiffs, including me, as well as in earlier court papers from both sides in various presentations before the Third Circuit and the Supreme Court. Any well educated intelligent person can figure out what the fundamental questions are (without going to law school). But a judge will have detailed case law available to compare the questions to previous cases where similar questions would have been interpreted and answered. That, from the point of the law, is what we need courts to do.

Nevertheless, the positions of the plaintiffs need to be understood. The government seems, at times (even more so in earlier case papers), to be offering “reassurances” the kinds of sites the plaintiffs have are not what prosecutors would go after. To a point, I believe that. But we still have to go with the application of the law, as a court will determine. We have to base our actions on the idea that in some jurisdictions there could be cultural opponents and “enemies” who will try to use the law to shut us down if the law, applied literally, allows them to do so. And that is where there are real problems, in determining what some of the law really means.

There is, then, the “cry wolf” problem. (It's "Chicken Little" publishing that "the shy is falling" and bringing down his "family.") Isn’t it a little risky to give people (potential “enemies”) “ideas” (in such a public manner and space) about what your weaknesses are? Won’t that tempt them to come after us when they wouldn’t have noticed otherwise if we had not become plaintiffs? That’s a touch question. There is a tendency for people to call attention to themselves and to the idea that others object to what they have to say. We see that with “our” kids in the way they behave on social networking sites—to the chagrin of perspective employers. Nevertheless, people do object, and they objected to a lot of what some us did or the way we lived long before there was a World Wide Web with its “free entry.” The basic disagreements in our society go beyond the surface arguments about abortion and gay marriage. They have to do with unequal division of the responsibilities of and risks of raising kids. It’s about a lot more than what we playfully called “SIBM” (“sexual intercourse before marriage”) in the Army.

My situation is quite different from many of the other plaintiffs, who often have operations that are much more commercial, and much narrower in the material that they offer. In my case, most of the content is free, it ranges across a huge variety of issues and most of it arguably does not present a significant problem for minors. In particular, the visual materials have no nudity or explicit materials at all. But the text deals with sensitive topics and sometimes uses explicit language to get a point across in effective fashion. This is particularly true of some chapters from the first book. There are also screenplay scripts that set up troubling situations, such as those that might occur in an “R” film.

The book texts have been self-censored in a few places, and the screenplay scripts have been modified (one was removed) to be less explicit and to reduce the indirect risks that could come from what some people believe is “self-defamation.” (When I was a plaintiff in 1998, I was told that I was the only one who had self-censored._ The “whole” (Prong 3) in these cases would be whole chapters of the books or whole screenplays, some of which are short. The cooperative publisher has copies of the book on line, on individual pages, which reduces the whole, and the these are uncensored. The publisher is not a plaintiff. However, my own copies of the text have been left available to search engines (which can find “bad words” and words in misleading combinations – something that has already happened in a school system when I was substitute teaching), whereas the publisher’s text (any of those that could have been problematic) has not been made available to internal book text searches. Therefore, a quizzical or curious minor would have to do a lot of manual work to find the problematic text on the publisher’s site. Hopefully and arguably, that work would require an effort that would provide the cognitive learning experience that satisfies the “serious value” prong. If COPA were upheld, the hope is that this could continue; but I would not be able to tell without reading a detailed opinion as to the exact meaning of the prongs with respect to some of the more subjective and troubling points.

The COPA case, as do a few other issues such as spam-spoofing, new email retention requirements, the emergence of “reputation monitoring” companies in view of the “Myspace problem” all challenge the “free entry” process by which newbies have been able to promote themselves on the Internet and become fresh voices in political debate, possibly a threat to the turf of media interests (and politicians) that got there the old fashioned way, by competing “like men” and “paying their dues.” The trial record does not always show that. Some verification mechanisms or geographic screening and profiling might work all right for larger businesses with operational economies of scale (especially those provided by large corporate mergers and buyouts) and legitimate brand recognition. Newer technologies of content labeling (discussed in detail on this blog) and identity verification “intelligence” might in time prove workable for small speakers, but much collaborative project work would have to be done by such companies as software and browser vendors and shared hosting ISP’s.

State HTM laws for the Internet similar to COPA

Many states have laws regarding HTM that are simlar to COPA. Virginia extended its law to the Internet in 1999, and it is now in litigation. The appeals court was concerned about the vagueness of "commercial" in the Virginia law and I believe it has been before the Virginia Supreme Court in Richmond since 2003. Doubtless the Virginia court will be influence by whatever happens with COPA. There are more details at the end of the file at this link.

Friday, December 01, 2006

Communication retention rules: Could they affect speakers?

A new AP story by Christopher S. Ruganear, "Companies face new rules on keeping data", Dec 1, 2006, at this location, and also displayed on AOL News, raises concerns. The Supreme Court had approved these rules last April and they go into effect today, Dec.1. Employers must keep track of emails and IM's, even from laptops, blackberries, cell phones, etc. in an organizable way for legal discovery purposes should they face litigation. The rules would probibit "virtual shredding."

Yet, I recall in late September 2001, a meeting at work in which my employer's lawyers were advising ordinary individual contributor associates not to keep unnecessary emails or communications lying around!

The concern with respect to COPA would seem to come up if a company were prosecuted (or sued under the civil provisions) under it, and had to produce the information in the discovery process. But this raises another question, what about discovery requirements for very small speakers who do not have employees but who may have indirect commercial potential?

Remember, in the COPA trial, the "free entry" idea was always indirectly under the table as a potential issue, as some speakers do not have the economies of scale for clumsy credit-card verification schemes or to "protect" the public in a philosophical way.

The content labeling systems, as presented here in earlier blog entries and as mentioned by the ACLU in its closing argument exhibits, could require speakers to have much more automated systems of content management, and record keeping.

So far, industry has little handle on how to handle these potential issues for small speakers.

One concern could be that speakers could be forced to use their email associated with their domain accounts rather than personal emails, and might not be allowed to automatically delete spoofed-sender bounceback emails sent to them by viruses and spam (which can overwhelm mailboxes). However, the AP story emphasized that the government's concern seems to be with emails and IM's generated by employees.