Tag: Packingham

A Broader View of Packingham SCOTUS Decision

Public protest.

Public protest.Photo by wellphoto

My last post focused narrowly on responding to assertions that the Supreme Court decision in Packingham casts doubt on the constitutionality of DMCA Sec. 512(i).  But as my friend and colleague Mike Katell observes on his blog, the rhetoric employed by Justice Kennedy in that decision underscores a particular challenge we face as social media continues to alter our relationships to politics, civil rights, and even to one another.  In his recent post, Packingham:  The Danger of Confusing Cyberspace with Public Space, Katell writes …

“Packingham is a case about constitutional rights that overlooks the increasing privatization of those rights. It is also part of a larger problem of misrepresenting cyberspace as a zone of freedom. This transformation in our relationships to rights, and our perceptions about those rights, is aided by the invisibility of power online.”

A PhD candidate and researcher at the University of Washington Information School, Katell’s post fairly well sums up the hazards of over-valuing social media platforms as the ultimate turbo-boost to civil liberties, particularly free speech. But among the first matters to address in context to Packingham is to remember that we’re not really talking in general terms about “the internet.”

We Don’t Use “The Internet”

The internet is infrastructure. Most of us don’t really think much about the cables, signals, servers, packets, etc. When we use “the internet,” we really mean platforms that are owned by massive corporations; and increasingly our needs are fulfilled by just a handful of companies.  In Packingham, Kennedy seems to be partly addressing the matter of access to the internet as a whole, particularly in striking down a State law that would too broadly deny that access.  So, in this context, Kennedy’s effusive rhetoric about cyberspace being the “most important place for the exchange of views” is somewhat understandable.  At the same time, when the opinion states, “On Facebook, for example, users can debate religion and politics with their friends and neighbors or share vacation photos,” this more narrow focus on a single platform invokes the context Katell and others are talking about.

Social Media is Not Like a Public Park

The main problem with viewing social media platforms as analogous to public spaces is that this view is apt to overlook the extent to which speech itself on these platforms is manipulated by their owners.  “Through a combination of architecture (code) and policies (terms of service), social media users are guided and constrained in what they can do or say. Twitter, Facebook, and other platforms routinely block users and delete content that would most likely be considered protected speech if it took place in a public venue,” Katell writes.

It is very likely true that some blocking and deleting would be protected speech in real space, though some blocking and deleting would not be. Web platforms do have a habit of defending speech—defamation, copyright infringement, harassment, incitement of violence—that isn’t protected in any context. But to Katell’s point, probably the first dangerous mistake is to ignore the fact that speech on these platforms is controlled—even to the extent that false or tangential stories can gather considerable steam in the minds of the electorate just by virtue of an algorithm repeatedly feeding similar messages. A steady social-media diet of certain messages can make almost any citizen feel rather under siege by a narrative that might not be true or particularly substantive.  We must, therefore, continuously ask to what extent these platforms fuel the present divisive climate rather than ameliorate it with their promises of promoting discourse.

The other danger, however, does arise from the internet industry’s chronic claims to be defenders of speech in numerous cases where harm is actually being done.  We have to ask to what extent this warps Americans’ understanding of the speech right, to say nothing of vesting corporations with the power to “protect” speech on our behalf.  Every time an edge provider cites the First Amendment as grounds for a business decision—usually to not remove some harmful content—and too many users support this view, we are conferring substantial authority to these private companies to secure our civil liberties for us.  Meanwhile, this industry posture feeds a misunderstanding that speech is absolute, which it is not.

The First Amendment prohibits the government from silencing speech. Period.  This means that a) everyone will occasionally be offended; and b) some who are offended will take such extreme action that they will effectively stifle the speech of their fellow citizens. This has always been true, and perhaps Justice Kennedy’s exuberant praise of the web ignores the new ways in which social platforms enable some citizens (or non-citizens) to silence others. We see it happen all the time.  Twitter mobs erupt and dox an individual by sharing home address, and other private information, with the intent to harass and intimidate the individual into silence. And these mobs come in every flavor across the socio-political spectrum.

This dysfunctional rise in mob culture and tribalism is a bigger topic, but the disconnect regarding speech has often occurred when the site owner and its users defend the mob’s responses as protected speech, which is simply not true by any definition.  These privately-owned platforms have every right (and perhaps an obligation) to deny the use of their services to those who would intimidate or harass other users, especially when the speech in question would not be protected outside the realm of cyberspace.  Basically, if a restaurant can throw a customer out for harassing another customer, there is no reason to think that Twitter may not do the same thing without raising a real First Amendment challenge.  But …

Social Media is Not Exactly a Mall Either

“This case is one of the first this Court has taken to address the relationship between the First Amendment and the modern Internet. As a result, the Court must exercise extreme caution before suggesting that the First Amendment provides scant protection for access to vast networks in that medium,” states Kennedy’s opinion in Packingham.

While the digital rights crowd will love the second sentence in that statement (and I generally agree with it by the way), the first sentence indicating that this is relatively new territory is the more interesting one.  A social platform is not exactly analogous to a park or a shopping mall;  and public policy has yet to really address constitutional rights in context to these new kinds of spaces—i.e. privately-owned, virtual space that is built for the purpose of public speech.

Parks and malls do no exist for the purpose of speech, although there is a considerable body of local, state, and federal case law, revealing a mosaic of views on allowing or limiting various types of speech at these venues.  For instance, a California Appeals court held that a mall could not limit or control visitors who come with the purpose of proselytizing religious, social, or political views to other visitors.  I am admittedly anti-pester and think a private facility has a right to restrict a certain amount of pestering on behalf of its customers; but it seems as though the mall’s restrictions, in this case, were viewed as too broad in context to the California State Constitution.

As policy takes shape in relation to cyber-venues, legislators and the courts will look to statutes and decisions associated with physical spaces, but at some point, those analogies must break down, and we enter new territory.  It has been a general bias—and certainly the desire of Silicon Valley—that government keep its mitts off “the internet.”  But if indeed access to a privately-owned platform like Facebook is held to be a civil right because of the First Amendment, then some form of social-media regulation may be the result of that conclusion.  Won’t that get interesting?

Packingham Ruling Likely Not Instructive to DMCA

Photo source by spaxiax

Another Supreme Court First Amendment decision this past Monday was a source of excitement for parties who consistently argue that copyright enforcement in cyberspace cannot help but infringe First Amendment rights.  I’ll say at the outset that I fully agree with the decision in this case but very much doubt any proposal that the opinion in Packingham v. North Carolina contains the DMCA implications certain copyright critics are hoping it does.

The case itself has nothing to do with copyright. In fact, Packingham begins with the highly-sensitive issue of registered sex-offenders and a North Carolina law designed to prohibit anyone who is so registered from using social media sites.  The eight justices (minus Gorsuch) held unanimously that the State law was far too broad in scope to achieve its purpose–that it infringes the speech rights of people who have already served their sentences by unduly denying them access to the contemporary equivalent of a library, public forum, employment resource, etc.

“With one broad stroke, North Carolina bars access to what for many are the principal sources for knowing current events, checking ads for employment, speaking and listening in the modern public square, and otherwise exploring the vast realms of human thought and knowledge. Foreclosing access to social media altogether thus prevents users from engaging in the legitimate exercise of First Amendment rights. Even convicted criminals—and in some instances especially convicted criminals—might receive legitimate benefits from these means for access to the world of ideas, particularly if they seek to reform and to pursue lawful and rewarding lives.”

It is just that kind of language that “digital rights” activists love to hear in general, but more specifically, some of the usual suspects have theorized that this decision may have constitutional implications for DMCA Section 512(i), which stipulates that, to remain shielded from liability for third-party copyright infringement, internet service providers must have policies in place that will ultimately result in account termination for “repeat infringers.”  Critics of online copyright enforcement are hopeful that the Supreme Court’s decision in Packingham establishes the precedent to advocate that restricting web access under any circumstances is always a First Amendment violation, which would gut one of the few remedies in DMCA that may actually be effective.

Reading Between the Rhetoric

The opinion, written by Justice Kennedy, does contain quite a few buoyant pull-quotes that internet advocates are going to save for future cases—if not make into hats, mugs, and bumper stickers.  “While we now may be coming to the realization that the Cyber Age is a revolution of historic proportions, we cannot appreciate yet its full dimensions and vast potential to alter how we think, express ourselves, and define who we want to be,” the opinion says. While there can be little doubt that Packingham affirms that cutting a citizen’s access to the internet begs careful scrutiny in context to the First Amendment, it may not be quite so fatal to DMCA 512(i) as is being suggested.

For all of its praise of the web, the opinion also contains caveats such as, “…this opinion should not be interpreted as barring a State from enacting more specific laws than the one at issue. Specific criminal acts are not protected speech even if speech is the means for their commission.”  It is a matter of settled law that copyright infringement is not protected speech; so qualifiers like this quote would seem to reject the prospect that citing Packingham will be particularly instructive to the constitutionality of Section 512(i).

Further, Justice Alito, joined by Justice Thomas, agrees with the decision, though not with the opinion.  Specifically, Alito sharply criticizes the broad rhetoric employed by his colleagues, concerned that these platitudes may foreclose a State’s right to tailor a far more narrowly-defined law that would seek to keep sexual predators away from access to children via social media. Observing that the internet unquestionably creates new opportunities for committing criminal acts, Alito seeks to temper the slightly techno-geeky ebullience of the opinion with comments like the following:

“The Court is unable to resist musings that seem to equate the entirety of the internet with public streets and parks. And this language is bound to be interpreted by some to mean that the States are largely powerless to restrict even the most dangerous sexual predators from visiting any internet sites, including, for example, teenage dating sites and sites designed to permit minors to discuss personal problems with their peers. I am troubled by the implications of the Court’s unnecessary rhetoric.”

“The fatal problem for §14–202.5 [the North Carolina statute] is that its wide sweep precludes access to a large number of websites that are most unlikely to facilitate the commission of a sex crime against a child.”

So, for all the web-endorsing statements made in the opinion in this case, the copyright enforcement critics may be grasping at straws here for the simple reason that both the intent and application of Section 512(i) is narrowly tailored to restrict access to individuals who are specifically abusing that access to repeatedly commit a specific crime.  (Stay tuned for people to muddle this by contrasting sexual predation with copyright infringement, but that’s not a comparison anyone is making.)

An Analogy Regarding Users

With a little revision, the language employed by the Court to describe the internet might be transposed to describe the automobile at the dawn of its entrance into American society.  The essential right to travel by car to work, to the store, to a doctor, to take a vacation, or just to go anywhere without purpose, is affirmed in the American triad of inalienable natural rights described as the Pursuit of Happiness. It is a declaration that predates the First Amendment by fifteen years and a whole revolution.

Yet, despite all that, the Supreme Court is unlikely ever to rule that a State may not revoke a driver’s license under statutes narrowly tailored to the purpose of maintaining safe and legal transportation on the highways. Similarly, if a user were to lose some form of internet access as a result of ISP compliance with DMCA 512(i), this remedy is narrowly focused on that user’s consistent abuse of the system itself.

Actual Practice 

The main flaw in the view that Packingham implicates anything about the DMCA is that compliance with its conditions is not mandated. The DMCA is law, but its provisions are voluntarily adhered to in order to qualify for the “safe harbor” liability shield for infringements committed by users. As such, provisions like Section 512(i) are broadly written in order to give ISPs discretion to design their own policies, although that discretion—as we see in the Cox case—has been interpreted by some providers to mean that they can avoid enforcement of a repeat infringer policy until they lose the safe harbor.

In reality, a user has to try pretty damn hard to have an account canceled by a service provider for repeat copyright infringement.  At the very least, a user will receive several warnings that his chronic infringement will lead to account termination. In general, though, it is unclear that any major service providers actually enforce repeat infringer policies at all.  This, of course, does not stop the pundits from repeating unsubstantiated claims of rampant “DMCA abuse.”

What Packingham does suggest to me is that the opinion would serve a plaintiff quite well, if he were to sue an ISP or edge provider for wrongful termination. But the potential for “wrongful” termination implies that there can be legitimate reasons for termination, whether these are based on compliance with statutes or they are stated in the company’s own Terms of Service.

Service Providers are Not State Actors

“Even extensive regulation by the government does not transform the actions of the regulated entity into those of the government.” (Jackson v. Metropolitan Edison Co 1974)

As stated repeatedly on this blog, regardless of the many free speech invocations made by the internet industry, the First Amendment only prohibits the government from infringing speech.  Google, Facebook, Amazon, Twitter et al may do pretty much whatever they want, including proscribing any form of content they deem unfit for their platforms; and the First Amendment has nothing to say about it. And, of course, site owners do control content on their platforms as suits their business interests.

The counter-argument being made is that Packingham comes close to asserting that any type of user access is constitutionally protected by the First Amendment and, therefore, a provision like 512(i) must be unconstitutional.  While it is certainly true that SCOTUS articulated the significant relationship between the web and the First Amendment, I believe this opinion stops well short of closing that particular circle of reasoning.  In fact, my legal expert colleagues tell me that this logic doesn’t usually carry much weight in court as it would imply that the moment any of us obeys the law, we become “state actors.”

In the end, the Supreme Court said some nice things about the internet–all true, I think, and all good grist for the PR mills.  But it seems highly doubtful that this opinion says much, if anything, about DMCA or online copyright enforcement.  To the contrary, the more the Court analogizes the web to parks and other physical, public spaces, the more likely it seems they will view cyberspace as a place where the rule of law still applies.