Blogs

It's Your Stuff? Maybe Not

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John Dvorak: Google Pulls Plug, Everyone Misses Point. The scary part is that we are not talking about some flaky, small underfunded company. We're talking about Google, a behemoth. This tells me that if Google can throw in the towel and abandon one of its online-related services, then anyone can do it—and they will. And then they'll all point to Google. "Well, if Google can do it after it made promises, then we can do it." It can happen anywhere. You have all your family photos online? Good luck with that. Your blogging software and blog are all online? Have a nice day. Your business is completely reliant on online systems? How does your insurance policy look?
The case here is about customers' ability to use a service they purchased. Google is reneging on its promise. But the bigger issue is in the latter part of this quote -- whether the photos, text, videos, financial information and other things you put online are yours, or whether they end up belonging, in practice if not principle, to the company you use to store and/or display them. For citizen media creators contributing their work to a variety of sites, this is not a trivial issue. The portability of data is one of the absolutely crucial problems in a world of online-everything. You cannot absolutely depend on online vendors to protect your information, despite their best intentions (and most of them have very good intentions). If you can't download your data to your own computer, in a form that lets you use it elsewhere with not too much hassle, then you should be clear: It's not really your data after all. Should there be a law about this? I suspect, in the end, we may need one.

Short Hiatus

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I'll be traveling for the next ten days.  Postings will be light as a result.

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Chinese Cyber-Dissident Sentenced to 4 Years for "Inciting Government's Overthrow"

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Reporters Without Borders is reporting that a Chinese court in the southeastern province of Zhejiang sentenced lawyer and cyber-dissident Chen Shuqing to four years imprisonment for posting articles critical of the government on the Internet:

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Regulating Blog Campaign Advocacy

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Allison Hayward, an assistant professor of law at George Mason University, has a new article coming out entitled Regulation of Blog Campaign Advocacy on the Internet: Comparing U.S., German, and EU Approaches. (Credit to Todd Zywicki at the Volokh Conspiracy for the tip.) Hayward writes in her abstract:

In brief, U.S. law protects blogging content, but may impose restrictions on the source of political commentary by barring certain funding sources. German law imposes stricter limits on the content of blogging, but does not regulate financial sources to the same degree. European court rulings may offer greater protection than domestic German law, but seem inconsistent and thus add uncertainty and ambiguity to the situation. In the end, bloggers may avoid legal entanglement because they enjoy public sympathy and support, but better still would be an international agreement to spare blogging from prosecution.

This is a subject we are working on for the CMLP Legal Guide, so I eagerly printed her excellent article (yes, I prefer to read things in hard copy). I'll touch on a few of the more important issues in this post.

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N.Y. City Backs Down on New Photography and Filming Rules

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In June we reported that the New York Mayor's Office of Film, Theater and Broadcasting was considering new rules that would require any group of 2 or more people who want to use a camera on city property -- including sidewalks -- for more than a half hour to get a city permit and $1 million in liability insurance.

Not surprisingly, the new rules were roundly criticized from the start. The New York Civil Liberties Union, which said the rules encroached on First Amendment rights, threatened to file a lawsuit to invalidate them. One of the more interesting approaches was taken by Olde English, a comedy group based in New York City that created a rap video lampooning the new rules and directing viewers to contact the Office of Film to express their dissent. (Don't miss the video, it's great.)

The city has now backed down, following a strong public outcry by photographers and independent filmmakers. NY1 News reports:

The Mayor's Office of Film, Television, Theater and Broadcasting said Friday that it will re-evaluate its set of proposed rules that would have required permits and as much as a million dollars in insurance for small, independent productions. The announcement comes at the end of a 60-day public comment period on the policies. The organization Picture New York gathered a petition with 31,000 signatures opposing the rules.

According to NY1 News, the Office of Film says it will take the public's comments into account in the next draft of the rules.

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Berkman Center Hiring Media Fellow

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The Berkman Center for Internet & Society at Harvard Law School is seeking a Media Fellow to undertake a project to comprehensively study the new/citizen/social media landscape. The fellow will perform a critical analysis of where citizen media has fallen short, where it has delivered, and how we as a community can help it to do better. Details:

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U.S. Senate Approves FOIA Amendments

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Last Friday night (8/3), the United States Senate passed the the FOIA reform bill, S.849, before retiring for its August recess. We discussed the proposed FOIA amendments in detail a few weeks ago, when Senator Kyl was still holding the bill up in the Senate. The most notable aspect of the draft legislation from our perspective is its expansive definition of "the news media," which appears to encompass bloggers and other online journalists. The bill also establishes a tracking system for individual information requests, reinforces FOIA deadlines for federal agencies, allows for recovery of attorney's fees when a requester is forced to file suit, and creates a FOIA ombudsman to help resolve disputes between the public and agencies without litigation.

When Congress reconvenes in September, the Senate and House (H.R.1309) versions of the bill likely will go to Conference to resolve small differences between them before final passage into law (assming, of course, that there is no presidential veto). (Please see the Open Congress website to search for the most recently available text of S.849 and H.R.1309.)

The CMLP applauds this important step towards greater efficiency, transparency, and fairness in handling requests for government information.

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First Criminal Online Libel Verdict in Bhutan

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Kuensel Online, the electronic version of Bhutan's English-language national newspaper, reported last week that a man who posted comments on its discussion forums was convicted of criminal libel:

On July 16 the Paro district court sentenced an employee of the National Housing Development Corporation (NHDC) to one year in prison, with an option to pay thrimthue, in the first ever online defamation case in Bhutan. The thrimthue of Nu. 36,000, in lieu of one year imprisonment, has to be paid within 10 days.

Defendant Yeshey Lotay was ordered to pay compensatory damages of Nu. 36,000 each to a couple, both forest rangers, within one month of the judgment. Pema Dorji and Ugyen, both civil servants in Paro dzongkhag, had filed the case against Yeshey Lotay for defamation in a kuenselonline discussion forum in August, 2006.

According to Kuensel Online, the defendant "pleaded guilty" in his opening statement and admitted that he acted with malice and had no proof to substantiate his allegations of bribery, corruption, and misuse of power.

Although it doesn't appear that Kuensel Online or the defendant's ISP were implicated in the case, the article quotes the court as stating that regulatory authorities and Internet Service Providers share equal responsibility to regulate Internet related crime:

"The websites that solicits online discussion forums must also be equally responsible to protect from the vices of any internet related crimes and the principle of vicarious liability impugn that it is just not good enough to say that the webmaster or editors are not responsible of the content with a disclaimer clause," said the Paro drangpon.

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Olympic Athletes May Be Allowed to Blog Again (with Conditions)

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The Australian is reporting that the International Olympic Committee (IOC) will likely rescind its requirement that Olympic athletes refrain from blogging during the Olympics:

The IOC Press Commission, chaired by Australian Kevan Gosper, is set to recommend that the IOC's powerful executive board drop its opposition to athletes writing blogs during the Games when it meets in November. Competing athletes are specifically prevented from working as journalists during the Games and have so far been strictly denied rights to continue writing internet columns during the event. But Olympic sources said yesterday that the IOC was set to make the shift as it realised it had to recognise the dramatic expansion of the internet in the daily lives of athletes. The IOC is also keen to expand the appeal of the Olympics to the youth market.

This seems like a complete no-brainer. Who better to provide first-person perspectives on the Olympics than the athletes themselves. The fact that they can't currently write about their experiences is lamentable, but not surprising given the IOC's strict control of everything related to the Olympics.

Of course the IOC's change, assuming it is approved, wouldn't just open the blogging floodgates. According to The Australian, the head of the IOC Press Commission said athletes "would have to comply with some strict conditions on their blogging, including not benefiting financially and not criticising coaches or other athletes."

Not criticising coaches or other athletes?! I guess that is free speech IOC style.

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Revised Federal Shield Bill Clears the House Judiciary Committee

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The U.S. House of Representatives has taken an important step forward on the federal shield bill (H.R.2102), which we've discussed in greater detail before. The proposed legislation would protect those "engaging in journalism" from having to testify about or produce documents relating to their work, and from revealing their anonymous sources, except under specified circumstances. Yesterday, the House Judiciary Committee approved an amended version of the bill after two hours of debate, sending it to the House floor for consideration.

The amended bill is not currently available online, but reports (here, here and here) indicate that the new version extends protection to bloggers as long as they derive "financial gain or livelihood" from their journalistic activity. Some in Washington are unhappy because this definition of journalistic activity is too broad, complaining that the "financial gain or livelihood" standard opens the door to anyone whose blog or websites raises even a small amount of revenue through ads. Conversely, some online sources are trumpeting the amended version as a victory for bloggers, with headlines like "House panel approves legal shield for bloggers" and "US law to protect bloggers."

Both sides miss the (fairly) obvious point that the the recent revision narrowed the scope of journalistic activity protected by the law. Don't get me wrong. The revised legislation seems like a good start, and the "financial gain or livelihood" standard may well be broad enough to drive a truck through, providing plenty of room for enterprising bloggers. But the revised bill does potentially (and arbitrarily) exclude those citizen journalists who choose not to have ads or other marketing tools on their sites. We'll reserve judgment for now, monitor the bill closely, and follow up when a copy of the revised bill is available.

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A.P. Request for Access to Search Warrant Affidavit Denied in Baseball Steroids Case

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Written by Tom Casazzone, CMLP Intern

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Bloggers Are Not Journalists, Illinois Juvenile Court Judge Declares

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An Illinois juvenile court judge refused to allow blogger Elaine Hopkins from Peoriastory.com to observe and cover a July 25 juvenile court hearing in Peoria, IL. In excluding Hopkins from the courtroom, Judge Albert Purham, Jr. ruled that bloggers are not journalists under Illinois law. Hopkins, who covered her ouster on her website, reported:

Operating a "so-called blog" doesn't make the person a journalist, Purham said. Before the ruling he consulted the lawyers in the courtroom. A lawyer for the parent in this child welfare case had no objection, and her client, Lorraine Singleton who lost her children in 2003 and is trying to get them back, also had no objection. But assistant state's attorney Susan Lucas objected, as did an unidentified female lawyer apparently representing the Illinois Department of Children and Family Services. An explanation that Peoriastory.com has operated since February 2007, has business cards, and is run by Hopkins, a former newspaper reporter known to court personnel, did not sway the judge.

Unlike adult criminal proceedings, which are presumed to be open to the public, juvenile proceedings have traditionally been closed. See In re Gault, 387 U.S. 1, 25 (1967). Under Illinois' Juvenile Court Act, the general public, except for the "news media," are excluded from juvenile proceedings. The provision addressing access, 705 ILCS 405/1-5, states:

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Bill Proposes to Criminalize Copyright Infringement

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The Electronic Frontier Foundation reports that the U.S. House of Representatives is considering criminalizing copyright infringement, again:

Two months ago, the Justice Department floated draft legislation to expand the scope of, and stiffen the penalties for, criminal copyright infringement, and now a related bill has been introduced in the House. This isn't the first time that Congress has taken up the DoJ's copycrime wishlist, and, for all the reasons we listed in a blog post about a proposal offered up last year, H.R. 3155 is an awful idea.

This bill goes even further than the prior bill in that it would ratchet up statutory damages in certain instances. Under copyright law, copyright owners don't need to prove that they have been harmed in order to get damages and can instead elect to get statutory damages, which a court can set between $750 and $30,000 per work infringed. Such disproportionate penalties can be especially dangerous when it comes to lawsuits against mass-market products like the iPod or TiVo that enable the making of thousands of copies.

Among other things, the proposed legislation, entitled "Intellectual Property Enhanced Criminal Enforcement Act of 2007," would make it a crime to attempt to engage in copyright infringement, which would be punishable by imprisonment of up to 20 years.

The bill was introduced on July 24, 2007 by Rep. Steven Chabot, and is currently sitting in the House Judiciary Committee. You can track its status at Govtrack.us and at OpenCongress.org.

To find out what you can do to derail this dangerous bill, visit the EFF's Fight The Justice Department's Copycrime Proposal!

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Is It Permissible to Say that New Zealand's Parliament is Filled with Idiots?

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Press Gazette (UK): MPs outlaw satire in New Zealand. New Zealand's Parliament has voted itself far-reaching powers to control satire and ridicule of MPs in Parliament, attracting a storm of media and academic criticism.

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Dangerous Legal Climate for Bloggers in Malaysia

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To follow up on Dan Gillmor's post earlier today, disturbing reports (here, here, and here) are emerging about the legal climate for bloggers in Malaysia. Yesterday, police detained Raja Petra Kamarudin, a prominent political commentator and blogger. They interrogated him for eight hours about articles he has posted recently and about user comments to his postings. Kamarudin is the editor of one of Malaysia's most popular political websites, Malaysia Today, which draws approximately 340,000 visitors a day, according to Chow Kum Hor of the Straits Times. The police summoned Kamarudin to Dang Wangi district police headquarters in Kuala Lumpur, following a complaint by the ruling United Malays National Organization on Monday, claiming that Kamarudin had insulted the king and Islam on his website.

Upon his release from detention, Kamarudin wrote to his readers, emphasizing the government's interest in user comments and warning that "what you post in the comments section may get me sent to jail under the Sedition Act." According to Reporters Without Borders (RWB), Kamarudin faces a possible three-year prison sentence. Charles Ramendran of the Sun reports that Kamarudin's wife said that this is the second time her husband has been brought in for questioning over a posting on his website. The police questioned him last year over a posting about the sale of state titles, but did not formally charge him.

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A Reminder of Free Speech's Value

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BBC: Malaysia cracks down on bloggers. The Malaysian government has warned it could use tough anti-terrorism laws against bloggers who insult Islam or the country's king.
I remember visiting Malaysia in late 2001, and being assured by people in business and government that the Internet was going to truly remain a free-speech zone (unlike the highly regulated traditional media).

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Libel Insurance For Bloggers?

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Eugene Volokh has reposted a very useful analysis of whether homeowner's insurance policies cover libel lawsuits, entitled Blogger -- You Might Have Already Had Libel Insurance. Volokh concludes -- in my opinion, correctly -- that homeowner's insurance policies, and possibly some renter's insurance policies, generally cover libel lawsuits. While these policies don't cover punitive damages (almost all policies exclude intentional or willful conduct), they do cover compensatory damages and attorney's fees.

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FOIA Amendments Beneficial to Citizen Journalists Held Up in Senate

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The New York Times reports that a bi-partisan bill (H.R.1309) to amend the Freedom of Information Act (FOIA) is stalled in the Senate after passing the House in March 2007 with a large majority (308-117).

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CIA Definition of 'News Media' for FOIA Requests Could Include Citizen Journalists

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GovernmentExecutive.com is reporting that the CIA has adopted a new definition of "news media" that could significantly reduce the fees and costs for citizen journalists who request documents under the Freedom of Information Act.

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Revealing Undercover Police Officer's Identity Not Privacy Violation in New Mexico

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To keep the police misconduct theme going here at the CMLP, I'll expand on a short post I read by Eugene Volokh on the Volokh Conspiracy. Volokh notes:

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