The Battle for Freedom of Expression

The internet has given rise to new forms of communication. It has obliterated boundaries between nations, but also created new areas for battle. The wars (or most of it) have moved from the real world to the online world. In such a world, it is a government’s job to protect its citizens, both offline and online. E.g. it has to protect the rights of content producers from having their work stolen and distributed online, by creating a strong copyright law. It has to protect all of its citizens against online fraud and abuse by creating strong cyber-security laws. And in doing so, it often has to redefine the boundaries of the First Amendment that protects citizen’s right to free speech, and might sometimes end up overstepping its role.

Consider the act of using hyperlinks on the internet. In Universal City Studio, Inc, et al. v. Reimerdes, et al., the court ruled that “the constitutionality of the DMCA as applied to defendants’ linking is determined by the same O’Brien standard that governs trafficking in the circumvention technology generally” [1]. The O’Brien test is a four-factor test, under which a law regulating non-verbal but expressive conduct will be upheld:

  1. if it is within the constitutional power of the Government
  2. if it furthers an important or substantial governmental interest
  3. if the governmental interest is unrelated to the suppression of free expression
  4. if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest. [2]

The court also recognized that exposing websites who use linking to liability is a genuine concern. Hence it mandated that for one to be liable, the Government needed to have clear and convincing evidence that those responsible for the link:

  1. know at the relevant time that the offending material is on the linked to site
  2. know that it is circumvention technology that may not be lawfully offered, and
  3. create or maintain the link for the purpose of disseminating that technology

It believed that such a law would limit the fear of liability on the part of the web site operators, as long as the link exists for purposes other than dissemination of that technology.

However, the O’Brien test was not enough to protect Barrett Brown. Brown, a well known journalist, had come across a link to a list of passwords of Congressional staffers that had been published. He had had nothing to do with stealing the information itself. All he had done was to copy the link from one chat room to another. But that was enough for the Government to indict him for trafficking in stolen authentication features, access device fraud and aggravated identity theft. [3]

This clash between the Government’s attempt to protect its citizens happened because the federal identity theft statute, 18 USC & 1028, is remarkably broad in its definition of “authentication feature”, which is defined as any symbol, code or sequence of numbers or letters used to authenticate a means of identification. And the Government argued that “means of identification” covers email addresses. According to the Justice Department’s theory, anyone who linked to that list violated the aggravated identity theft statute because during that crime, they knowingly transferred a “means of identification” – the email addresses.

While most of these very serious charges against Brown were dropped, the prosecution and the many months of jail time that had he already served definitely chilled free speech on the internet by scaring journalists and ordinary citizens from linking to publicly available, sensitive information.

And if the new laws [4] proposed by President Barack Obama in his State of the Union address become reality, things are about to get much worse for free speech. According to the new proposed laws, ordinary Internet readers, bloggers and media companies (read – news outlets) would be subject to felony cybercrime charges for disseminating hacked material. Under the new laws, if you saw an article about the 25 most common passwords, and shared it with your friend, you would be liable for a felony charge. Under the new laws, if you shared your password for your Netflix account, you could be liable. Under the new laws, even Google would be in the same boat – attracting felony charges for its ethical hacking initiative “Project Zero”.

This is because the new law abandons the previously used language – “intend to defraud” – in favor of a more ambiguous “willfully”. And “willfullness” is defined in the statute to mean having “wrongful intent”, but “wrongful” is not defined in the statute. This leaves it open to interpretation, and gives prosecutors a tool to prosecute anybody who has even only tweeted a link to an article about a list of passwords. [5]

Another interesting battle line that has been drawn is that of the Governments’ role in defining social experiments and social progress.

A case that highlights this is Boy Scouts of America v. Dale [6]. In a five to four decision, the Supreme Court ruled that opposition to homosexuality is part of BSA’s “Expressive message” and that allowing homosexuals as adult learners would interfere with that message. It reversed a decision of the NJ Supreme Court that had required BSA to readmit Scoutmaster James Dale, who had made his homosexuality public and whom the BSA had expelled. The court believed that it is crucial to prevent the majority from imposing its views on groups that would rather express unpopular ideas.

This is particularly interesting to explore, because the line that separates unpopular ideas from ideas that cause public harm is a thin one. In this case, did the discrimination by Boy Scouts of America based on sexual preference caused harm to the overall fabric of the society, setting back New Jersey’s experiment to end discrimination based on sexual orientation? What if the organization in question was a less benign one, say a Neo-Nazi association, or a new form of the Ku Klux Klan? To develop policies that protect community interests while safeguarding the rights of individuals, a balanced approach might be more dependent upon the context of society at that time, than on objective criteria.

[1] Universal City Studios, Inc. v. Reimerdes, et al., 111 F. Supp. 2d 294 (2000)
[3] (Links to an external site.)
[4] (Links to an external site.)
[5] (Links to an external site.)
[6] Boy Scouts of America v. Dale, 530, US 640 (2000)


This blog post was a part of my assignment for the Information Law and Policy class at the School of Information, UC Berkeley.