The NASCAR crash followed much the same pattern so many news events do now, in the age of real-time and social media: moments after the crash occurred, there were multiple eyewitness photos and videos of the incident, including one particularly horrific one captured by university sophomore Tyler Andersen, who was sitting just to the left of the section that was hit by the debris — including a tire that flew off the race car in question. Soon, a link to the video on YouTube was racing through Twitter and other channels.

In this case, Google decided to over-rule NASCAR

Suddenly, however, the video was no longer available, and in its place was a standard YouTube message about the content being removed because of a copyright claim by NASCAR. This raised a host of questions for those who were trying to access it, including: How could the racing entity remove the video so quickly? Why didn’t YouTube protest that it should be protected by the principle of fair use, since it was a news event? And how could NASCAR claim that it had copyright over a video that was created by a fan?

When debris hits the crowd, NASCAR's precious video rights should be superseded by the right of the crowd to tell their story.

—
Cory Bergman (@corybe) February 23, 2013

The latter question was answered hours later when YouTube reinstated the video and released a statement saying that partners such as NASCAR are only allowed to remove content that breaches their copyright, and the content in question didn’t pass that test (even though NASCAR asserts in the fine print when you buy a ticket that it owns everything fans produce while at an event). Said the YouTube statement:

“Our partners and users do not have the right to take down videos from YouTube unless they contain content which is copyright infringing, which is why we have reinstated the videos.”

The other two questions people had are even easier to answer. In a nutshell, Google provides its YouTube partners with an easy way to have content removed almost immediately: it’s a tool called Content ID, and it’s essentially a back-door to the YouTube content-management system. When a company like CNN or NBC or some other partner sees their TV shows or news clips being shared on YouTube without permission, they can submit a form and have it pulled down.

Copyright claims favor the owner, not the uploader

One of the main reasons why Google does this — and why it doesn’t bother (except in extreme cases) to protest or demand an explanation for takedown requests — is that the Digital Millennium Copyright Act or DMCA only gives services like YouTube “safe harbor” from copyright-infringement charges so long as the company acts quickly when it receives a takedown notice. In effect, there is virtually no leeway for protests or attempts to get a provider to defend their demands.

Prime example of DMCA abuse (which i lectured on today) mobile.theverge.com/2013/2/23/4022…

—
Jillian C. York (@jilliancyork) February 24, 2013

As a number of observers — including Jillian York of the Electronic Frontier Foundation — noted during the NASCAR incident, this is just one of the many ways in which the DMCA actually fosters bad behavior, or at least behavior that seems bad if you believe in free speech and freedom of the press. The fact that Google acted quickly to put the content back up is admirable, but it shouldn’t have to do this, and there are no doubt many other important cases in which it hasn’t that don’t involve something as attention-getting as a race-car crash.

And as Jason Pontin of MIT’s Technology Review pointed out in a recent essay on free speech in a digital era, our speech is to a large degree controlled by private corporations like Google and Twitter and Apple, and in many ways we are still coming to grips with what that means for us as a society.

Post and thumbnail images courtesy of Flickr user Petteri Sulonen

As my GigaOM colleague Bobbie Johnson pointed out in a recent post, the French government has been making some strong — and controversial — statements about what it wants the company to do after an outbreak of homophobic, racist and anti-Semitic comments erupted on Twitter. The minister for women’s rights, Najat Belkacem-Vallaud, wrote in a newspaper opinion piece that the government believes the service must “respect the values of the Republic” and take action to stop or censor hate speech. She said French authorities will be discussing how to do this with Twitter, and added (translation by Google):

“Even before the work is started, it should already be possible to act to remove tweets that are clearly illegal and, at the very least, make access impossible, so that the damage already done [to homosexuals, etc.] do not persist or do not cause additional problems with young people attracted by the publicity given to this unfortunate story.”

Many governments want to use Twitter to control speech

Since French laws make hate speech illegal (as similar laws do in a number of other countries, including Canada), the minister is really just asking Twitter to do the same thing the German government did: that is, to censor speech that contravenes the laws of the country. In the case of Germany, it was tweets by a neo-Nazi group, since expressing Nazi ideologies is illegal there. Twitter explained at the time that it had no choice but to obey the laws of the countries it does business in, but that it would try to limit the impact on free speech by only blocking access to those tweets for residents of Germany — as permitted by the regional-censorship tools it announced about a year ago.

Although they haven’t gone as far as France or Germany, officials in Britain have also broached the idea of trying to restrict Twitter speech — and for what they say are similarly virtuous purposes: after the riots in London last year, the government argued that much of the violence was driven by social media, including Facebook, Twitter and Blackberry instant messaging. The authorities held discussions with most of the major players about how (or whether) they should regulate such conduct, but in the end no action was taken. Twitter has also been involved in some of that country’s infamous “super-injunction” cases, where even the mention of an injunction is considered illegal.

In some ways, the German example was the most clear-cut case Twitter could possibly have wanted: it referred to specific speech — expressing Nazi ideology — that is illegal, and is relatively easy to nail down. But this ability opens a vast can of worms for a company whose CEO and general counsel have both repeatedly referred to it as “the free-speech wing of the free-speech party.”

In Turkey, for example, it’s illegal to say or do anything that is seen as insulting to Turkishness — a law that the government has used to block YouTube videos, among other things. What if Turkey was to ask Twitter to block or ban tweets or accounts that engaged in anti-Turkish behavior? A similar kind of question came up during the recent hostilities between Israel and the terrorist group Hamas, when both sides used Twitter to hurl threats at each other. What if Israel asked Twitter to ban or block Hamas accounts or tweets sympathetic to this illegal organization? What if Egypt had asked for censorship during the Arab Spring?

What qualifies as hate speech on Twitter?

The racist and homophobic tweets targeted by the French government are an even slipperier slope: even if hate speech is against the law, what 140-character messages would fall into that category? Would simply using a hashtag like #SiMonFilsEstGay (If my son was gay) or #UnBonJuif (A good Jew) qualify? If Twitter was supposed to be removing or blocking access to specific tweets, how would it determine which were genuinely hate speech? Would it have a list of banned words, or run some kind of sentiment algorithm filter on the entire stream?

In a very real sense, what the French government seems to want Twitter to do — or wants to help it do — is virtually impossible. Twitter sees almost half a billion tweets every day, and has difficulty even providing a search function that works over a longer period than about a week. How could it (or anyone else) manage to filter through those millions of tweets to remove or block access to ones that expressed specific thoughts or opinions? And even if it could, would that be the right thing to do? Glenn Greenwald at The Guardian makes a persuasive argument that it would not, although others have argued that France should renounce the “free-speech fetish” of the U.S.

As it becomes an increasingly global media entity, however — and one that controls its own platform, unlike the declining media giants of the past — this is an issue Twitter is going to have to confront head on. And how it handles these kinds of censorship demands will say a lot about how much trust we can have in this digital free-speech machine.

Post and thumbnail images courtesy of Flickr users Hoggarazzi and Shutterstock/Jirsak

In case you missed it, the first incident involved a BBC television show that claimed an unnamed former UK politician abused boys. Soon after, people on Twitter used “jigsaw identification” to conclude that the person is question was Lord McAlpine, and some of their conclusions were retweeted 100,000 times. The BBC soon acknowledged the report was false and apologized to Lord McAlpine who said the public hatred he endured was “terrifying.”

Meanwhile, in New York, a man accused Sesame Street puppeteer Kevin Clash of carrying on an affair with him when he was a minor. Even though the allegation were unproved, Twitter immediately lit up with tasteless jokes linking to the Clash story like:

“Voice of Elmo accused of affair with minor nyp.st/TVGXVd” haha no elmo you’re not supposed to tickle me! elmo stop! ahhhh elmoooo!

— Ryan MacNamara (@massnamara) November 12, 2012

Several days later, the accuser recanted his story and said he was of age and that the affair was consensual. On Sunday, the story became more confused with reports of a payoff and a criminal history on the part of the accuser.

Trial by Twitter and libel law

The facts aren’t identical but both situations involve public figures subjected to “trial by Twitter” over terrible allegations. The legal fall-out, however, has been very different.

In Britain, Lord McAlpine has already obtained a libel settlement from the BBC for falsely suggested he was a paedophile on national TV. The legal action didn’t stop there, however. Lord McAlpine’s lawyers have also vowed they will go after “a very long list” of people who repeated the claims on Twitter.

Meanwhile, neither Clash nor Sesame Street have threatened to sue the media or anyone who shared the story on Twitter. This response reflects not only different facts but also very different libel laws in the US and Britain.

“[I]n America it’s hard for famous people (and especially government officials or former high government officials) to sue people for defamation.  The plaintiff has to prove that the defendant knew the allegation was false, or at least knew it was quite likely false,” explained Professor Eugene Volokh, a noted First Amendment scholar at UCLA, in an email. ” Moreover, if the defendant is just stating an opinion (“Based on what I read in this article, so-and-so must be guilty”), that too is constitutionally protected against a libel lawsuit.”

Volokh added the rules are different for non-public figures. In the UK, however, the overall libel law is much stricter and puts the burden of proof on the speaker to show a statement is true. This means the rich and powerful in Britain have long used libel law to intimidate or silence critics.

“The English law has been completely fixated on reputation and undervalued the public interest in free speech, and has been unwilling to protect the media against good-faith mistakes,” according to an email from Professor Stephen Scott, a constitutional law expert at McGill University. “This has not only been in the context of defamation, but in book/magazine, theatre and cinema/video censorship.”

Can you sue 100,000 Twitter users?

If Lord McAlpine’s lawyers follow up their threat, it will be interesting to see how far they get. Under UK law, they can go after not just people who tweeted conclusions about the BBC show but also everyone who retweeted those conclusions. In theory, half the country could be in court by the time this is done.

Those in America are safe from the Lord’s lawyers, however. That’s because Congress in 2010 unanimously passed a law called the SPEECH Act to put a stop to so-called libel tourism — where powerful people around the world would get a libel judgement in London and then show up in America to collect.

Unfortunately, the American shield is of little help to UK Twitter users. Those users not only face legal exposure over Lord McAlpine, but will have to decide whether to self-censor the next time the BBC reports news they can’t confirm. While false accusations about paedophilia are a terrible thing, such  legal campaigns that stymie free expression may prove an even greater evil.

As services like Twitter cause news to spread faster and more broadly than ever, courts in the UK and elsewhere will have to find new ways to balance reputations and free speech.

[Update: A reader objected to the original headline which said “BBC and Elmo sex scandals.” My intent was to provide context not sensationalism but I take the point and have updated:

Hey GigaOm, you think maybe we could NOT use the phrase “Elmo sex scandal” in headlines? gigaom.com/2012/11/18/twi…

— Jillian C. York (@jilliancyork) November 19, 2012

One of the most obvious examples of this occurred very early in the attack, when the Israel Defence Forces’ official Twitter account posted a tweet that warned Hamas leaders not to “show their faces above ground” because the army was about to launch missiles into their area of the Gaza Strip. This arguably qualifies as a direct and specific threat of violence, which is against Twitter’s terms of service — but so far the tweet remains, and the IDF account has not been sanctioned (there were some reports that it had been suspended, but those appeared to involve another unrelated account). In fact, the IDF account is marked as officially “verified” by Twitter.

We recommend that no Hamas operatives, whether low level or senior leaders, show their faces above ground in the days ahead.

—
IDF (@IDFSpokesperson) November 14, 2012

When does Twitter decide to block content?

So far, Twitter hasn’t responded to a request for comment on how it is handling the Israeli conflict and the fact that it is playing out live on the network — complete with photos of rocket attacks, burned-out buildings and even dead bodies (I’ll update this post if and when Twitter responds). The company has often spoken of its responsibility as the “free-speech wing of the free-speech party,” but for the most part that has involved promoting the rights of individual users in the Arab Spring and Occupy Wall Street protests, not the interests of governments and armies.

Arguably, Israel would be well within its rights to ask Twitter to remove or censor tweets by Hamas, which is defined by the Israeli government as a terrorist organization. If Twitter has selectively censored tweets by Nazi sympathizers after a request from the German government — using the new powers it introduced earlier this year — then how would it justify not giving Israel the same ability to block Hamas tweets, or filter them based on certain geographical limits?

And it’s not just Twitter, of course: the Israeli army has been uploading videos of rocket attacks to YouTube as the campaign has been unfolding, and some are fairly graphic — including one that blew up a car carrying the head of the Hamas military wing. That video was removed Thursday morning by YouTube, and it appeared that the site might have decided it breached their terms of service, but then the company said it had removed the video by mistake and it was reinstated.

Threats of violence and shocking images are also something that Facebook has been known to remove, but for now at least the network says it won’t be removing content posted by the Israel Defense Forces — which includes an app that curates photos from Instagram, many of which the army said were taken on the ground during its attack on the Gaza Strip.

Our new information gatekeepers are inscrutable

But according to Mike Isaac of All Things Digital, the Facebook spokesperson he heard from didn’t say why the content from the Israel Defense Forces was being left up, or under what circumstances it might be taken down — leaving the question open of what Facebook would see as offensive content in the context of a war. And that reinforces the same problem that has arisen before with Facebook and other similar social networks as a platform for speech: namely, they are effectively a series of black boxes when it comes to decision-making around what gets removed.

When YouTube removed the initial IDF video, it wasn’t clear whether that was an editorial decision or one made in error by an algorithm. When Facebook deletes accounts belonging to Arab women who are fighting for their rights, it isn’t surprising that this is seen by some as censorship, even when it might just be an errant algorithm. And while Google and Twitter both put up lists of the requests they get from officials, the reality is that they remove or filter out plenty of content and never mention it. And when Google selectively blocks a video like “The Innocence of Muslims,” there is no court of appeal that will hear arguments about that decision.

So while it’s a great thing to have all these sources of information — assuming that you believe more information is better, even if it is coming from the communications branch of the army — it is almost all being hosted by proprietary services (although the IDF also has an active blog where it has been posting live updates and even infographics). And while they have all expressed their commitment to free speech in some form or another, they have absolutely no obligation to uphold that, or to tell users when information has been removed, or why.

We may have disrupted our old information gatekeepers — newspapers, television, even governments — but in many ways we have just exchanged them for shiny new ones. And they are just as inscrutable, if not more so.

Post and thumbnail images courtesy of Flickr user Hoggarazi

These are questions that seem to be coming up more and more frequently as we live increasingly large parts of our lives online: When is it okay to publicize someone’s identity for things they said on Twitter, and what kinds of consequences do we think are appropriate for online bad behavior?

The post by Jezebel co-founder Tracie Egan Morrisey — which was entitled “Racist Teens Forced to Answer for Tweets About the ‘Nigger’ President” — was a followup of sorts to a previous post that highlighted a number of racist tweets posted to the service following Obama’s election victory on Tuesday night. None of the users who posted them were specifically identified, but in the more recent piece, Morrisey identified several students at a number of schools in the U.S. who posted similar comments. The story also went into some detail about them, noting that one student “plays football for Xaverian High School, a private Catholic prep school in Brooklyn, NY,” and that others also play sports for their schools.

What is an appropriate response for a single tweet?

The point of doing this seemed to be that most schools have codes of conduct, particularly for those who represent the school on sports teams, and racist tweets would appear to be in contravention of those rules. But is publicly identifying these students — who are legally children — on a website like Jezebel really an appropriate response to what in some cases was a single tweet? In an email, Morrisey said that she felt there was no issue with writing the story, since the students in question had already publicly identified themselves through Twitter profiles and Facebook profiles:

We actually did not “out” the identities of these tweeters — they did, through their public Twitter accounts and Facebook profiles. They used their real names, listed their schools and their locations, and thus broadcasted these details to the entire world by virtue of putting them on the internet.

We chose to get in touch with the school administrators who are charged with educating these individuals because the institutions not only have mission statements about their educational goals, but they also have student conduct codes.”

Some commenters on Jezebel clearly disagreed with the site’s decision. One comment that got a lot of votes from other readers asked “Is this what we’ve come to?? Internet shaming children, blasting their crimes across the web?” And others who specialize in online behavior, including sociologist Zeynep Tufekci from the University of North Carolina, also said they found the public shaming troubling:

@mathewi Wow. Publicizing racist tweets like this is not healthy or good for combating racism, or educating teens or letting them grow.

—
Zeynep Tufekci (@techsoc) November 09, 2012

Many of those who took part in a Twitter discussion of the issue with me on Friday believed that the students in question should have to face the consequences of their actions — after all, the internet is a public place, they argued, and even children need to realize that making such comments could affect their lives. Others said that public shaming of racism is the only way to effectively fight such beliefs, and therefore what Jezebel did was appropriate.

@mathewi the Internet is not anonymous. Online comments have real world consequences. Best kids learn that lesson early.

—
  (@kathodgson) November 09, 2012

Is there no room for online mistakes any more?

One of the things that troubles me about this incident is that it shows how quick we can be to judge a person — especially someone in high school, who may be acting badly for all kinds of complicated reasons — without any real understanding of what is going on, or what the repercussions may be. Making people face the consequences for saying things online is a noble goal, but is there no room even for children to make mistakes without the full force of the internet being brought to bear? As far as I can tell, Morrisey didn’t even try to contact the high-school students she profiled, or their parents.

@pwthornton @mathewi @AdrienneLaF Or maybe they're just clueless kids who think it's cool to say wild stuff without grasping implications?

—
Elaine Clisham (@eclisham) November 09, 2012

A quick internet search of one of the individuals mentioned shows that this incident is the top result for their name. Maybe that will fade over time, especially since some of those involved seem to have deleted their accounts — or maybe it won’t. Couldn’t the same thing have been achieved by calling the schools to identify the students, without doing so in the article itself? Morrisey denied that there was any attempt to “shame” those involved, and yet the headline talks about forcing these students to answer for their alleged crimes. Is this kind of online vigilantism really going to solve anything?

@mathewi These Tweets are hateful & vicious but Jezebel could've made those calls without publishing names and school affiliations.

—
Liz Pullen (@nwjerseyliz) November 09, 2012

Similar issues came up during the recent public outing of a notorious Reddit “troll” named Violentacrez, who was profiled in a Gizmodo post, and the similar revealing of a Twitter user who went by the name ComfortablySmug, who posted inaccurate information during Hurricane Sandy. The Reddit moderator was seen as fair game by many because he created threads devoted to child pornography and other offensive content, but ComfortablySmug was a less obvious case — as we noted in a post and an internal debate that we published about the issues raised by such online lynch mobs.

Both of those individuals were adults, however, and presumably understood the consequences of their actions before they engaged in them. How much should we expect high-school students to suffer for what might have been an offhand comment or an attempt to impress their friends? How much public ridicule or online condemnation is too much, and when does it cross over into outright bullying? These are issues we are going to be confronting more and more as we live out our lives online, and the answers are not obvious.

Post and thumbnail images courtesy of Flickr users Cotidad and See-ming Lee

In the case of Reddit, a moderator known as Violentacrez created a series of offensive and quasi-legal threads or sub-Reddits within the site devoted to posting photos of women (in some cases, minors) taken in public without their permission, and when Gawker writer Adrian Chen said he planned to make the moderator’s real identity public — which he later did in a long profile of Violentacrez and his various obsessions — some parts of the Reddit community responded by banning links to any Gawker Media blogs, raising questions about the site’s commitment to free speech.

An internal memo from Reddit CEO Yishan Wong later admitted that the ban — which was not site-wide but confined to certain specific parts of the community — “is not making Reddit look so good,” and that in the future the site will “respect journalism as a form of speech that we don’t ban,” just as sub-Reddits devoted to offensive content are:

“We stand for free speech. This means we are not going to ban distasteful subreddits. We will not ban legal content even if we find it odious or if we personally condemn it. Not because that’s the law in the United States – because as many people have pointed out, privately-owned forums are under no obligation to uphold it – but because we believe in that ideal independently.”

Twitter blocks its first account for hate speech

Meanwhile, Twitter said on Wednesday that it has blocked the account of a neo-Nazi group at the request of the German government, something that the company announced earlier this year it had the ability to do — although it said at the time that it would try hard to only use this feature in extreme circumstances, and would record its behavior at Chilling Effects so that everyone would know. The block was announced in a tweet from general counsel Alex Macgillivray, and he later added: “Never want to withhold content; good to have tools to do it narrowly & transparently.”

Although Twitter has blocked accounts for other reasons — including the controversial blocking of a Financial Times journalist who criticized the network’s corporate partner, NBC, during the Summer Olympics — this is the first time it has done so at the request of a foreign government. Since its inception, Twitter has boasted that it sees itself as the “free-speech wing of the free-speech party,” and both Macgillivray and CEO Dick Costolo have regularly defended the need to “let the tweets flow” during events such as the Arab Spring.

As Twitter has become larger and more corporate in its focus, however, with hundreds of millions of users around the world and the need to generate revenue a priority, simply “letting the tweets flow” is no longer an option. As a global media entity, Twitter arguably had to abide by the German government’s request in order to do business there. The question is where Twitter will draw the line when free speech conflicts with its desire to either promote its corporate partnerships or make peace with foreign governments (Google also blocks content based on foreign laws in countries such as Germany, as Danny Sullivan points out).

.@amac and now Arab Spring, and all the Springs, are over. #shame

—
Grover Bynum (@groverbynum) October 18, 2012

Where does the censoring stop?

The banning of Gawker links seems like an obvious infringement on free speech — although as Yishan Wong points out, free-speech protection is something that is only legally or constitutionally required of governments, not corporations. But the posting of photos taken in public without the subject’s consent is a lot more complicated: while taking a picture of someone in public without their permission is legal in most of North America, it isn’t in some other countries because it is seen as an infringement of privacy.

Should the posting of such photos qualify as free speech, even though it is offensive to women and possibly contributes to an atmosphere of misogyny and/or promotes violence? Some would argue that they should not — or that the need to protect free speech should be modified by a desire to promote positive social attitudes, and therefore Reddit should remove this kind of content. Critics cite the famous quote from Supreme Court justice Oliver Wendell Holmes, in which he said free speech should not protect someone who shouts “Fire!” in a crowded theater (although some legal scholars say we should be careful of how much we cite Holmes, since his commitment to free-speech principles was questionable at best).

But Twitter’s decision to bow to Germany’s desire to block a specific account is troubling for a number of reasons. Although it is nice that Twitter can allow the rest of the world to see the tweets in question, rather than blocking it entirely, this is a little like Google selectively blocking access to the offensive anti-Muslim video “The Innocence of Muslims” from Egypt and Libya. Do people in those countries not deserve to see content that everyone else can see? Are we prepared to sacrifice their free-speech rights (assuming we think they have any) to protect the interests of a specific company?

What if the government of Iran asked Twitter to block accounts that post photos of scantily-clad women because they are against the law? Would that be acceptable? Twitter has said that it will make its own judgments in such cases, as Google does — but what recourse do we have if they decide to do something we disagree with? More than anything, these kinds of cases reinforce how much influence private entities like Twitter and Google now have over what information we receive (or are able to distribute), and the responsibility that this power imposes on them.

Post and thumbnail images courtesy of Flickr users Jennifer Moo and Rosaura Ochoa

As Alex Hern at New Statesman describes it, the issue exploded into public view after the moderators of a Reddit page called r/politics said they were banning the posting of any links from Nick Denton’s Gawker Media network. Why? Because Gawker writer Adrian Chen was reportedly planning to expose the real identity of a moderator running a page devoted to creepy pictures of women called r/creepshots (the same person was also a moderator on another sub-Reddit called r/incest, which was deleted by Reddit last year, as part of an attempt to crack down on offensive and/or illegal content).

Banning links to protect freedom of speech

The moderator in question — who went by the name violentacrez — appears to have deleted the sub-Reddit and all of its posts, and has also deleted his Reddit account completely (Jessica Roy at Betabeat also has a good roundup of the story). And moderators of other pages, including r/politics, decided to block links from Gawker as a way of showing their displeasure at the attempts to force violentacrez to reveal his true identity. The moderators of r/politics posted a statement saying:

“We feel that this type of behavior is completely intolerable. We volunteer our time on Reddit to make it a better place for the users, and should not be harassed and threatened for that. We should all be afraid of the threat of having our personal information investigated and spread around the internet.”

As more than one person has pointed out, these comments are filled with unintentional irony on a number of levels, including the fact that a site which champions free speech is banning links to a specific news outlet for something it hasn’t even reported yet, and the outrage that it is complaining about is the act of revealing information about a person in public — a person who moderates a page where people post revealing photos of women without their consent. Even some Reddit defenders seemed to be taken aback by the hypocrisy of the r/politics moderators in this case.

To complicate the picture even further, a Reddit critic set up a Tumblr blog called Predditors, which posted photos and biographical information about the users who were active on the r/creepshots page, including photos from their Facebook pages, as well as racist and offensive comments made by them, details about their families, and so on. Some Reddit users responded to this attack with further outrage, saying their privacy was being invaded — even though (as Choire Sicha at The Awl pointed out) all of the information was already publicly available on the internet, and was just aggregated by the Tumblr blog’s author.

Can we count on communities to self-regulate?

The Predditors blog was removed by Tumblr, apparently because the site was afraid the photos were not legal, and then it was later reinstated, but it now it requires a password to access. The Jezebel blog (which is part of Gawker Media) spoke to the creator of Predditors, a 25-year-old woman who said she is a Reddit member but was outraged by the content on r/creepshots and decided to do something about it:

“Reddit’s defense of [CreepShots] is that it’s ‘technically legal.’ So I’m doing something that’s technically legal, but will result in consequences for their actions.”

If you’re an optimist about the power of online communities like Reddit and its cousin 4chan (which has been home to even worse content, if that’s possible), you could see this as a kind of self-regulating process at work. Given the ability to post anything whatsoever, with little or no oversight from any site editors — apart from periodic attempts to remove illegal content — it’s natural to assume that every dark element of human nature will be represented. And in some cases, moderators will actually trample on the principle of free speech even as they allegedly are trying to protect it.

At the same time, however, Reddit does self-regulate — and even the appearance of the Predditors blog could be seen as part of that process. The site has taken action in the past to crack down on offensive behavior, and it’s worth remembering that the Reddit community can also be a powerful force for good in the world, by calling attention to worthwhile causes like the fundraising for young Caine Monroy, or engaging in random acts of kindness such as arranging for strangers to send birthday wishes to a retired Army vet in a small town. Or random acts of journalism.

Maybe we should think of Reddit the same way we think about British tabloids — they contain all kinds of unseemly content, nude photos and ridiculous conspiracy theories, but occasionally they also have actual news in them, and so they are probably worth keeping around.

Post and thumbnail images courtesy of Flickr users Hoggarazzi and Jennifer Moo

Federated Media founder John Battelle noted in a recent post that the company’s argument in the Occupy case raises a host of questions about what it means when a user owns their content, and what responsibilities that should impose on Twitter. For example, shouldn’t users be able to display their tweets wherever they wish, or connect with whatever external services they choose to connect to? And shouldn’t users be able to get access to all of their past tweets, something Twitter has so far only done in certain special cases with users like Andy Carvin of NPR? As Battelle puts it:

“[T]his builds a case for other ownership rights as well, such as the right to repurpose those words in other contexts. If that is indeed the case, I can imagine a time in the not too distant future when people may want to extract some or all their tweets, and perhaps license them to others as well. Or, they may want to use a meta-service… which allows them to mix and mash their tweets in various ways, and into any number of different containers.”

Two conflicting visions of Twitter

In a sense, there are two Twitters. They aren’t completely separate entities, but two different ways of looking at the company and its purpose — and the tension between the two seems to exist within the company itself, as well as externally. One version is the open network for real-time news and information, which acts as a kind of utility for anyone to distribute their thoughts and content, and it is this Twitter that people like general counsel Alex Macgillivray and CEO Dick Costolo are referring to when they say the service is the “free-speech wing of the free-speech party.”

When looked at in this way, it seems obvious that Twitter would want to allow users like Occupy protester Malcolm Harris to control what happens to their content — after all, the network is simply the conduit for those comments, not the owner of them. In other words, it is more like a content-agnostic telecom carrier than it is a traditional publisher like a newspaper. As Twitter said during the Occupy case:

“Twitter’s Terms of Service have long made it absolutely clear that its users *own* their content. We continue to have a steadfast commitment to our users and their rights.”

But we’ve seen another Twitter emerging recently — at first gradually and then with more and more urgency. This version of the network is designed to control access to users’ content by restricting where and when and how their tweets can be displayed, which has meant cutting off the access to a user’s follower graph that services like Tumblr and Instagram used to have, and potentially threatening the way that other services like Flipboard and Storify handle tweets. The obvious impetus for all of this behavior, as we’ve explained before, is the desire to monetize the content that flows through the network, and in order to do that Twitter needs to control it more tightly.

The tension between the two is growing

Obviously, a court’s request for the tweets of a protester and Twitter’s relationship with third-party services are two separate issues. One is a legal situation where the company has to tread very carefully, since there are some significant risks to asserting ownership — including the fact that it could make Twitter liable for defamatory or otherwise illegal statements expressed by users. The company’s relationship with third-party services, meanwhile (it is apparently going to remove support for outside image hosting services next, according to BuzzFeed) is arguably just a corporate concern.

That said, however, I think that at least some of the frustration that users like myself feel at Twitter’s recent changes comes from the tension between these two approaches. On the one hand, the company wants us to believe that it has no interest in controlling or asserting ownership over our tweets, because it is interested in free speech and is just a conduit for our content — but on the other hand, it wants to control what happens with our tweets, and even shut down services that we wish to use to display that content, in order to monetize something that we created. How does that help us as users?

Of course, Twitter has every right to do whatever it believes is necessary, in order to build a business that can justify all the money it has raised from venture capitalists over the past couple of years. But doing so also raises the potential for conflict between what it needs to do for monetization purposes and how users have come to think of it thanks to cases like Occupy. Finding a safe path between those two is not going to be easy — if anything, it is only going to get harder.

Post and thumbnail images courtesy of Flickr users Faramarz Hashemi and See-ming Lee

To some extent, WikiLeaks has always been as much myth as substance, and possibly even more so. The idea of a secretive group of information outlaws with servers located in Iceland or deep inside a Swedish mountain, especially a group headed by a white-haired fellow right out of a spy novel, always seemed almost too good to be true. And anyone who has gotten close to the organization, from Icelandic MP Birgitta Jonsdottir — who helped edit the infamous Collateral Murder video showing a U.S. military attack on civilians in Iraq — to former New York Times executive editor Bill Keller, has found that the reality lacks a certain something when compared to the myth.

The spotlight on Assange blinds us to the real issues

As Glenn Greenwald noted in a post at The Guardian this week, much of what has been written about WikiLeaks over the past year has focused exclusively on Assange and the rape charges that Sweden is expected to level against him if and when he is ever handed over to that country. There has been little or no coverage — at least from the mainstream media — about the effects of the ongoing financial blockade of WikiLeaks that was instituted last year by PayPal and Visa and MasterCard (which the organization is trying to get around by using the peer-to-peer money system known as Bitcoin) or who might be behind the recent denial-of-service attacks on WikiLeaks that seem to have been orchestrated by U.S.-based sources. Why? Greenwald has a theory:

“There are several obvious reasons why Assange provokes such unhinged media contempt. The most obvious among them is competition: the resentment generated by watching someone outside their profession generate more critical scoops in a year than all other media outlets combined.”

Whatever the reason, with Assange and his legal and personal problems hogging the spotlight, it’s easy to lose sight of what WikiLeaks has accomplished, whether because of or in spite of Assange’s leadership (or possibly both). Whatever you think of the U.S. government or the U.S. military, the Collateral Murder video was a groundbreaking moment in coverage of the country’s activities in Iraq and by extension the rest of the Middle East, and the release of hundreds of thousands of U.S. diplomatic cables was also a watershed event, even if the tangible effects of that document dump are difficult to quantify in political terms.

Would any of that information have come to light without WikiLeaks? Perhaps. And it’s important to remember that WikiLeaks didn’t come up with all of those documents on its own — they were delivered to it by the original leaker, who may or may not be former U.S. Army intelligence analyst Bradley Manning, the man the government has been holding in a military prison for more than two years without a trial on accusations of espionage.

A former colleague of mine, the Globe and Mail’s European correspondent Doug Saunders, has argued that WikiLeaks was no more than a virtual “brown envelope” for the data that Manning (or whoever it was) came up with, a simple mechanism for distributing the leaks, in the same way that Deep Throat handed over documents to the Washington Post‘s Watergate team in a parking garage. In other words, there shouldn’t be any more attention paid to WikiLeaks than there was to the U.S. postal system or to parking garages. But is that true, or does WikiLeaks represent a significant shift in the global flow of information?

We need a stateless news organization, however flawed

I think it’s the latter. It’s true that WikiLeaks has used publications like the New York Times and The Guardian and Die Zeit to help it sift through and publicize the information that has come out of the leaks it acquired — but that was as much about marketing as anything else. The reality is that WikiLeaks is a publisher, and a radically new variation on the species: one that has no state affiliation, either express or implied, as journalism professor Jay Rosen suggested when he called it the world’s first “stateless news organization.” In a world where even the New York Times fails to discharge its duty properly during events like the coverage of the Iraq war, such an entity is more important than ever.

WikiLeaks has also spawned a kind of mini-explosion of imitators, including leak dumps that are devoted to environmental data, or information about the corrupt political system in the Balkans, or about dozens of other topics. As a recent piece at Radio Free Europe pointed out, many of these have either failed or are in a state of disrepair for a variety of reasons (not least of which is the fact that running an anonymous document archive that can’t be traced or hacked into is exceedingly difficult), and the most famous of all — OpenLeaks, which was set up by former WikiLeaks insider Daniel Domscheit-Berg — is still mostly nonfunctional.

As flawed as they might be, however, they continue to exist. And the example set by WikiLeaks can be seen even in smaller incidents, like the recent “document dump” that Gawker provided of presidential hopeful Mitt Romney’s financial records. While there may be no smoking gun in those files, just the fact that they have been made public has changed the game to some extent, and will likely encourage more of the same.

It’s worth noting that even those who have had a falling out with Julian Assange or WikiLeaks, including both Jonsdottir and the NYT’s Keller, have repeatedly said that the organization and its mercurial founder need to be supported, in the interests of freedom of speech. Keller said in an email to me recently that whatever we may think of Assange or his organization, it is a journalistic outlet or entity just as the New York Times or any other newspaper is — and we should be just as protective of its right to free speech and a free press.

That is the true legacy of WikiLeaks: flawed or not, mythical or substantive, it is an engine of free speech and free information, and as such it is worth defending, whatever we might think of its leader.

Post and thumbnail images courtesy of Flickr user New Media Days

The Virginia man at center of the case, Daniel Ray Carter, clicked to “Like” the “Jim Adams for Hampton Sheriff” page in 2009. The incumbent sheriff learned of his subordinate’s “Like” for his opponent and fired Carter shortly after he won re-election.

Ordinarily, it is against the law to terminate employees for their political opinions. When Carter sued, however, a Virginia judge ruled in April that, unlike writing a message on Facebook, the act of clicking a “Like” did not amount to speech worthy of First Amendment protection.

Carter appealed the decision and this week Facebook filed to support him. In its brief, the social network says a “Like” is protected symbolic speech like a bumper sticker or a campaign lawn sign — both low-cost ways for citizens to express their political opinions.

The appeal will turn on the original judge’s conclusion that the “Like” was insignificant speech that did not involve “actual statements.” Facebook is countering this by pointing out that the “Like” appeared on Carter’s profile page and in the news feed of Carter’s friends. The evidence also showed that others in the sheriff’s office saw the “Like” and predicted that Carter would be “out of there” because of it.

Carter is likely to prevail. US courts have long protected a wide range of symbolic speech such as arm bands and flag burning. Recently, a federal judge expressed support for a vice-principal who was fired for having a symbolic hot dog cook-out in support of poorer students at the school.

Prominent First Amendment scholars like UCLA’s Eugene Volokh have also supported Carter’s position, saying a “Like” clearly is speech.

The Facebook Like case is just the latest in a series of decisions in which courts have struggled to apply Constitutional rights like free speech and privacy in the context of social media. In another high-profile case, Twitter is appealing a New York judges’ ruling that an Occupy Wall Street protestor has no constitutional rights in his tweets.

Update: The American Civil Liberties Union has also filed a brief to support Carter.

“The Supreme Court has made clear that the First Amendment protects everyone’s right to express their thoughts and opinions in whatever form they choose to do so, whether it’s speaking on a street corner, holding up a sign, or pressing a button on Facebook to say that you ‘Like’ something,” said ACLU attorney Aden Fine.

Here is Facebook’s brief in support of Likes as free speech:

Facebook 1st Amendment

(Image by Vince Clements via Shutterstock)