Freedom of Speech On the Internet Is Under Attack, Again

Two stories I heard on the news in the last 24 hours makes me wonder if I accidentally mistook my Hyundai for a souped up DeLorean and drove it to 88 mph. Why the time machine references? Because two proposed laws want to take us to either 1996 or George Orwell’s 1984. Allow me to explain, starting with the least frightening…

The Arizona legislature passed a bill (H.B. 2549), which is awaiting the governor’s signature, that would make it a crime to hurt someone’s feelings using any technology more sophisticated than carrier pigeons. Here’s the text:

“It is unlawful for any person, with intent to terrify, intimidate, threaten, harass, annoy or offend, to use a ANY ELECTRONIC OR DIGITAL DEVICE and use any obscene, lewd or profane language or suggest any lewd or lascivious act, or threaten to inflict physical harm to the person or property of any person.” [Emphasis added]

It gets worse. Violations of the law would start as a Class 1 misdemeanor and top out at a Class 3 felony if technology was used to harass or stalk a victim. According to Gizmodo, “for those not intimately familiar with Arizona penal law, a Class 1 misdemeanor is punishable by a $250,000 fine and up to six months in jail (it’s the most aggressive misdemeanor charge the state can bring). A Class 3 felony, meanwhile, carries a minimum sentence of 2.5 years for non-dangerous offenders with no prior record. And a max of 25 years in jail.”

Does looking through a Facebook friend’s profile photos–often referred to cheekily as FB stalking–or checking someone out on Google prior to a date count as real stalking according to this law? Guess we’ll find out! Who’s the judge of what is offensive or not? Is it an objective standard or subjective to whomever bothers to file a suit? If someone sees a post that wasn’t directly meant for them, but is still semi-public, does that count? A student of mine sent me a link about a recent story about a teacher’s aide getting fired after a parent reported a suggestive photo posted on Facebook. It seems like that could be a crime under this bill.

What’s totally asinine about this ham-handed way to stop the scourge of cyber-bullying is that this law was already tried back in 1996 with the federal Communications Decency Act. That train wreck of a bill got ripped to shreds by the Supreme Court for abridging non-commercial speech, conditioning the restrictions on undefined terms like “patently offensive” and not allowing parents to determine what material was acceptable for their children. Looking at the Arizona law, one cannot help but imagine that these lawmakers just copied the CDA and tweaked it to make it even broader and less Constitutional.

Sure we want to protect our kids from other mean kids (or adults) using text messages or social media, but this is totally the wrong way to go about it. The law is so broad that it easily covers speech that is not just direct, two-way communication, but Internet chat rooms, discussion boards and comment sections. Essentially, anyone on the Internet could be hailed into court in Arizona if someone in Phoenix looks at a page with an “offensive” comment that person left.

And it’s not just academics like me (not that I hold myself in the same league as Prof. Volokh) who are upset about this. According to MSNBC’s Technolog:

First Amendment rights group Media Coalition, which represents the Motion Picture Association of America, the Recording Industry Association of America, the Association of American Publishers and other related groups, says the bill is not only a violation of the First Amendment, but is so far-ranging as to be preposterous.

In a letter to the governor, the coalition said while government can criminalize speech “that rises to the level of harassment, and many states have laws that do so,” Arizona’s legislation:

… takes a law meant to address irritating phone calls and applies it to communication on web sites, blogs, listserves and other Internet communication. H.B. 2549 is not limited to a one to one conversation between two specific people. The communication does not need to be repetitive or even unwanted. There is no requirement that the recipient or subject of the speech actually feel offended, annoyed or scared. Nor does the legislation make clear that the communication must be intended to offend or annoy the reader, the subject or even any specific person.

That’s right, they ticked off a group run by the MPAA and RIAA. Smart. Have they seen how relentlessly those guys go after people who share a couple of tracks of Jouney and Def Leppard on KaZaA? Do they think the entire content industry is going to sit back and let Arizona dismantle the Internet? Could there be a more obvious answer to a rhetorical question?

Banksy at his best

As if that weren’t bad enough, across the pond in England, a secret group of regulators are trying to push through a massive surveillance network that would allow the government to monitor all traffic on the Internet at an unprecedented scale.  Reported last night on CBC’s As It Happens, the scheme would place black boxes at strategically important network nodes that would perform what is known as “deep packet inspection,” giving the British Secret Service access to every citizen’s email, text messages, phone history and Internet usage. According to Eric King, the head of research at Privacy International, a UK-based human rights group that campaigns for the right to privacy, the move would “leapfrog” totalitarian countries like China and Syria in terms of how deeply it monitors web traffic.

What’s worse is that this is all being done in secret (except for the leak), without any input from Parliament or the people. Such an intrusive invasion of privacy smacks of just the sort of nightmare world George Orwell imagined. This time, I think skeptics are right to be react with outrage because, unlike typical hyperbolic, the-sky-is-falling reactions to eavesdropping like that under the USA PATRIOT Act, this would be real-time monitoring of ALL traffic in the UK. Given the way that the Internet works, passing messages from one computer to the next on down the line until it reaches its final destination, this monitoring would effectively police the entire Internet for anything and everything the government deems in its interest. Big Brother would indeed be watching, only without the ominous face staring down at you.

Hopefully now that the word is out about this, it will prove to have been some elaborate April Fool’s Day prank gone horribly awry. Sadly, the way things have been going, I highly doubt it.

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About Justin Kwong

An attorney in the Twin Cities and adjunct professor at William Mitchell College of Law where I teach a seminar on the law of virtual worlds.
This entry was posted in Legislation, Mobile Devices, Multi-user Online Environments, Privacy, Rights and Civil Liberties, Social Networks. Bookmark the permalink.

3 Responses to Freedom of Speech On the Internet Is Under Attack, Again

  1. U sux…

    I think I just committed a misdemeanor (possibly a felony) if I was in Arizona.

    p.s. please tell me this was an April fools joke.

  2. Michael Kemp says:

    Other people who use digital media to intimidate or offend: Howard Stern, Eminem, Michael Moore, Rush Lindbaugh… How many of them will get arrested, do you think?

  3. Annoyed says:

    The section of H.B. 2549 you quoted reaches far beyond the internet. By using the phrase ANY ELECTRONIC OR DIGITAL DEVICE it includes not only voice, SMS and MMS messages on mobile networks but taken to the extreme one could argue it includes any printed document that was created on a computer or even an electric typewriter. Media Coalition could well be worried that they will have to start using manual typewriters again to issue their infringement notices to alleged media pirates – who would very likely be feeling terrified, intimidated and threatened by such things.

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