Lawyers in the midst

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What if a private company determines the limits of free speech?

Increasingly, corporate lawyers working for private companies will have more to say about freedom of speech than governments and courts.

Don't believe me? http://www.npr.org/2011/11/30/142714568/interpreting-the-constitution-in-the-digital-era?sc=fb&cc=fp

If you can, listen to the Fresh Air podcast.

Consider this quote: "Nicole Wong (former lead attorney for Google) was the one woken up by the Turkish government, for example, who were upset because Greek football fans were posting videos on YouTube saying ... the founder of modern Turkey was gay [and it is illegal in Turkey to insult the modern founder of Turkey]," says Rosen. "So Wong, in the middle of the night, has to decide, 'Is this a clear violation of Turkish law?' on which case it comes down, [or] is it an edge case and should be protected as free speech? In the end, she decided to block access to certain videos through Turkish IP addresses. ... So Nicole Wong concretely dramatizes that lawyers at Facebook and Google have more power than a Supreme Court justice."

The reasoning behind this: More and more people are turning to the internet as their primary source of information. They use the big search engines to find that information.

When these search engines make a decision to delete or block something, that pretty effectively shuts down access to that information.

Rosen co-edited this book, Constitution 3.0: Freedom and Technological Change, which I plan to get very soon. It discusses freedom and what it may and may not mean in the digital age. Some of the ideas expressed in the book are beyond disturbing. Lemme hit three for you.

FREEDOM OF THE PRESS

In the case of Turkey (above), free speech is stifled. It is shut down not by government fiat but by private lawyers working for a private company. And, it's legal.

Today's issue out shortly...

The right to free speech is a restriction on government. Private companies have a LOT more legal authority to shut down free speech within their demesne.

This is NOT a contradiction with the right to free speech. The right to free speech INCLUDES the right to keep your damfool mouth shut AS WELL AS the right to not be forced to say something.

In simpler terms, freedom of the press belongs to the man who owns the press.

You don't like what the press owners says, you go buy your own press and say what you want to say.

Google, Yahoo, Bing, Facebook, et al are absolutely no different from the man who owns a newspaper printing press. They all have the right to decide what content they allow to be produced through their equipment. Lawyers will make these decisions and governments won't be able to do much about it.

Many object to this. Good. If you don't like the TOS (terms of service) or such internet giants, go start your own internet company and you can make the rules as you see fit.

STUPID IS AS STUPID DOES

In this story, Jeffery Rosen speaks of what he calls a Right to Oblivion. I 'splain.

Like gone man...

You are young, foolish, stupid and probably should be shot (I actually was shot, but that's another story). You do something stupid. You make a record of it. Think pictures.

Some years down the road you wish the stupidity had never happened. You want to destroy the evidence.

Before the internet, this was pretty easy. Burn the prints and negatives and if necessary, shoot the photographer. This can create additional problems though.

Now with the internet, once something is online, it's pretty much gonna be there forever. With one possible exception. Over a decade ago I found a mind-boggling picture of a Natural Light-induced technicolor yawn. I have not been able to find it since. Which is probably good as posting it here would lose me a goodly number of readers.

This man will one day run for president.

A pop/rock singer in South America had some "racy" pictures taken at the beginning of her career. They periodically showed up on the internet. She objected. She also sued to have the pictures taken down and to prevent search engines from locating them. A court in S. America agreed.

Google said blocking access to those pictures along could not be done. So, apply Occam's Razor.

They have blocked all mention of the singer. According to Google at least, she does not exist. This partly embodies the Right to Oblivion as Rosen outlined it.

BIG BROTHER

As Rosen goes on, he dips into an Orwellian nightmare. With ever increasing knowledge of the brain and how it functions, some criminal court cases are actually presenting a defense that the criminal's brain would not stop him from committing the crime.

We're watching you.

Well. It's more complicated than that.

The defense stipulates the part of the brain which should have worked to stop the criminal impulse does not properly work. Ergo, the criminal deserves some leniency because his brain does not work right.

My thoughts exactly.

But extend this out. Scan a brain. Determine that the brain doesn't work well enough to control criminal impulses - this is a hardwired matter.

The brain-scanned person is now identified as a person who has a tendency to commit crimes. Not just a tendency. Based on brain scans, this person will commit crimes.

What do you do? Can you arrest the person or otherwise restrain them in an attempt to keep them from criminal behavior?

I am not a luddite, but some of the new technology does give me cause for pause.