Wednesday, January 23, 2013

Can "protecting minors" and "purpose-driven legislation" create a slippery slope?

We often hear arguments for new legislation to “protect children”.  And we often hear that the freedom to possess or create something can be taken away if it serves no valid “purpose”.

The obvious application of these arguments is in the gun control debate, particularly with respect to possessing assault weapons or rapidly loading magazines, which do seem to have no legitimate use for most civilians.

You could use the same kind of thinking to restrict Internet freedom, particularly in the user-generated content area.  You could try to justify removing Section 230 downstream liability protections for service providers, for example to prevent reputation extortion or cyberbullying.  You could justify exposing ordinary sites or providers to more possibility to protect minors’ privacy (as with COPPA rules).  You could even justify some future reincarnation of COPA itself.

The “purpose” argument (used in gun control) because it can also play into a legal doctrine called “implicit content”, mentioned during the bench trial of COPA in Philadelphia in 2006. A blog posting or website object could be deemed illegal if the likely potential benefit that could be expected to accrue to the poster was illegal.  In that world, sites that earn money might actually be legally more legitimate, because making a living is a legitimate “purpose.”

So does gun control represent a legally slippery slope that can spread to other areas?

There's one other remark that has run in my mind about the Newtown tragedy in Connecticut.  It sounds as though Mrs. Lanza may have been considering not only committing Adam, but also taking away his computer access and his whole world.  It sounds as though she may have introduced him to weapons earlier to "make a man out of him".  It's a horrible thought, but quite common with some parents of disturbed teens boys.  The National Enquirer has claimed that Mrs. Lanza was a "Doomsday Prepper" and had probably preached to her son that the world would end on Dec. 21, 2012.    

Saturday, January 05, 2013

Deletion of personal cell phone video can lead to obstruction of justice charges (Steubenville, Ohio case)

A recent assault case in Steubenville, Ohio brings up a legal point which, although not limited in effect to minors, deserves mention in connection with teenage “cell phone abuse”.

In this case, some bystanders took videos of the incident (without intervening) and then reportedly deleted the videos.  That, according to prosecutors, can lead to obstruction of justice charges.  If you do nothing and never photograph anything at all, no charges would be possible.  This would be true whether the video and photos came from a cell phone or conventional digital camera. 

The story (Greg Mitchell)  in “The Nation” is here.

The influence of the hactivist group Anonymous is being debated.  The group apparently recovered and exposed some of the video.  But it is also being reported that, because of posting of these videos, it will be hard for defendants to get a fair trial.
The Columbus Dispatch reported the Reuters account here

Tuesday, January 01, 2013

More concerns have arisen over FTC's definition of "directed at kids" in new COPPA rukes

Forbes has a recent article (by Eric Goldman)  characterizing the recent FTC implementation of new rules for COPPA a  (Children’s Online Privacy Protection Act) “big mess”.  

One of the problematical issues concerns the idea that app developers will be held responsible when their software is used to collect information from other sites (especially Facebook).   This happens when there is “actual knowledge” that the app will be used this way.  Goldman calls the language “inscrutable” but that part may be common sense.  The problem is that app developers will now have to go through considerable expense to safeguard apps likely to be used by kids on major third party sites.

Goldman also takes issue with the last (or third) tier of the FTC”s expanded definition of “directed at kids” which can include more general-purpose websites and apps likely to appeal to everybody, but especially to older minors, particularly precocious minors already performing in public or working in unusual ways.  (We saw this kind of discussion with COPA.)   General purpose educational materials, for example on the sciences or sports with hobbies likely to appeal to minors could fall into this area.  Website operators could be in violation if they track information inadvertently, even IP addresses.  The FTC seems unaware that all hosted website services offer logs with IP addresses, and all offer detailed analytics (Urchin) that may fall just short of providing identifiable information if the webmaster looks hard enough.  (As I have noted, I had reason to examine my own user logs in late 2005 after an “incident” when I was substitute teaching.)  Advertising networks may expect webmasters to be facile with looking at detailed web statistics, and it is possible even to cut off specific abusive users (that has to do with HTA Access in Apache).  It’s not clear that the FTC was aware of how this really can work.

The link for Goldman’s article (Dec. 20,2012) is here

It is true that liability exists for service providers and webmasters only when "actual knowledge" of data collection from kids from sites or apps "directed at kids" exists.  

The precocious minor issue is interesting.  There are some practical situations where the only people  (for employment purposes) who have the detailed knowledge of how to deploy a particular site or app effectively are themselves minors.  This can be tricky.