Re: Editors note incl. Dangerous Precedents Set - Federal Criminal Charges for Violation of Commercial Online ToS?

[David Farber <dave () farber net>]

Begin forwarded message:

From: "L Jean Camp" <ljeanc () gmail com>
Date: December 1, 2008 11:38:20 AM EST
To: dave () farber net
Subject: Re: [IP] Re: Editors note incl. Dangerous Precedents Set -  
Federal Criminal Charges for Violation of Commercial Online ToS?
Reply-To: ljean () ljean com

This is about both faces of privacy: the right to speak anonymously
and right to be left alone. And these do conflict. EFF always falls on
the right to speak anonymously and others advocate for "more speech".
But what about MySpace's responsibility? If there is anonymous speech
about me I cannot argue with my accuser.  I cannot engage with the
speaker.  The complete inability to ask for review of anonymous hate
speech about a personally identified target is a clear problem. IF
there had been someone with the technical authority to delete the
contents to which the mother could have appealed then this could have
been avoided. Even if there were a mere delay period for contested
speech intervention with the victim of the privacy violation (to be
let alone)  could have occurred. Would it have hurt to delay the
release 24 hours and freeze the accounts upon request, effectively
asking the participants to reconsider or move to another platform? How
often would the ability of a subject of speech being able to delay or
contest publication harm the speaker? MySpace has made the rules that
give them total control and zero responsibility. What if the posts had
been more easily identifiable as death threats?

This is a case in which personally identifiable speech created a clear
and present danger to the subject. It is a case in which two
dimensions of privacy conflict.  It is a difficult problem, and
pretending that it is not does not move the debate forward.

If there were some ability to delay or request deletion for something
OTHER THAN copyright, then there might be some solution. Obviously,
unlike copyright holders, average individuals will not be free to make
infinite use of review/removal requests without costs.  After review,
if the speaker appealed (without losing this fake anonymity of course)
then there could be reversal. Look, there were a thousand
delete-and-restore battles on clam beds on Usenet. In the long term,
the information came out but possibly some posts were canceled that
might have been better seen.  And this idea of anonymity of the
speaker is, in this case, a joke. Was she using Tor? Did it take more
than ten seconds to track her down? Did she have her allocation of
doubleclick cookies, telling Google, her ISP and other sellers of data
exactly where/what she was doing? This is a cheap masquerade of
anonymity and pretending that it is true anonymity serves no one.

If this had been a case about Disney potentially losing $19 dollars in
a sale, then there is an entire structure devoted to protecting this
corporation. However,  the victim of harassment was a child stepping
on the edge of maturity, one struggling with depression, so there was
no recourse. Merely life, and not money, was on the line.

We can do as the blogger and the link you posted to was very clear
that it was the MOTHER'S FAULT. She left her child ALONE ON THE
INTERNET.  But if you can not argue against a ruling without blaming a
depressed child for her despair or her mother for having to work in
order to live indoors, then you don't have an argument.

Clearly Lori Drew engaged in malicious harassment. What kind of vile
behaviors should be legal is never an easy question. When the Internet
expands and amplifies the power of harassment and verbal abuse, what
should the rules be? What are the responsibilities or corporate
creators and controllers of public spaces? Do they answer to anyone
other than Disney? Or is intellectual property the only calling that
might require social intervention? Have we decided that there is
indeed no right to be let alone?



On Mon, Dec 1, 2008 at 6:33 AM, David Farber <dave () farber net> wrote:
> Begin forwarded message:
> From: "Dave Wilson" <dave () wilson net>
> Date: December 1, 2008 5:24:25 AM EST
> To: dave () farber net
> Subject: Re: [IP] Re: Editors note incl. Dangerous Precedents Set -  
> Federal
> Criminal Charges for Violation of Commercial Online ToS?
> Very nice analysis of the decision on Groklaw; here's a sample:
>
> Is it not Kafkaesque if you can be dragged into court on a whim in any
> location in the world, if the computer you are alleged to have  
> misused is
> located there, even if it's half a country or even a world away from  
> where
> you reside and they can put you in jail for a crime that wasn't  
> defined as a
> crime at the time of your conduct in question? It'd be one thing if  
> you were
> given a notice that this was the new interpretation; but if you just  
> wake up
> to find out you are a retroactive criminal, you might as well be in  
> a Kafka
> novel, because there is absolutely no way to ever know what the  
> definition
> of criminal conduct will be tomorrow or when it can retroactively be  
> applied
> to you. Drew, according to reports of the testimony at trial, never  
> read the
> terms of use. Yes, but she should have known, said the prosecutor.  
> She must
> have. How do you know? Should the law guess? We can be put in prison  
> because
> although there is no proof we knew something, we might have or could  
> have or
> must have?
>
> If you think I am overstating what the brief is saying, feel free to  
> say so,
> but do read it. At least then, you'll know what the uproar is all  
> about. I
> know from some of your comments that you think the verdict was all  
> about
> Lori Drew. I don't think so. I think it's about us.
>
> http://www.groklaw.net/article.php?story=20081128005538214
>
> On Sat, Nov 29, 2008 at 7:06 PM, David Farber <dave () farber net> wrote:
> > Begin forwarded message:
> >
> > From: "Wendy M. Grossman" <wendyg () pelicancrossing net>
> > Date: November 29, 2008 3:16:29 PM EST
> > To: dave () farber net
> > Cc: ip <ip () v2 listbox com>
> > Subject: Re: [IP] Re:     Editors note incl. Dangerous Precedents  
> > Set -
> > Federal Criminal Charges for Violation of Commercial Online ToS?
> > Reply-To: wendyg () pelicancrossing net
> >
> > (For IP if you wish)
> >
> > David Farber wrote:
> > > Begin forwarded message:
> > > From: Gabe Goldberg <gabe () gabegold com>
> > > Date: November 29, 2008 1:14:01 PM EST
> > > To: dave () farber net
> > > Subject: Re: [IP] Re:   Editors note incl. Dangerous Precedence  
> > > Set -
> > > Federal Criminal Charges for Violation of Commercial Online ToS?
> >
> > > Are loony nebulous mumbo-jumbo agreements like that actually  
> > > binding? Or
> > > just legal folly? Who knows.
> >
> > FWIW, I tried to look at these questions a bit for the Guardian:
> >
> > Software licenses / EULAs:
> > http://www.guardian.co.uk/technology/2008/apr/24/law.software
> >
> > Privacy policies:
> > http://www.guardian.co.uk/technology/2008/jan/10/privacy.it
> >
> >
> > wg
> >
> >
> >
> >
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--
L. Jean Camp
http://www.ljean.com
Net Trust
http://code.google.com/p/nettrust/
Economics of Security
http://www.infosecon.net/




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