Law
 Submitted by Aldon Hynes on Thu, 06/19/2008 - 08:32 (Check me out!)
Recently there have been a lot of stories about people or organizations reacting heavy-handedly to events online, where people have organized and pushed back. It seems common enough that a look at the underlying dynamics needs to be looked at.
The hottest right now is probably the DMCA takedown requests that the Associated Press has issued against Drudge Retort. A lot has been written about this already, and a lot more needs to be written and will be written. For those who have not followed this, I would encourage you to check out the UnAssociated Press website. As you might guess from the title, they have a particular slant, going so far as to call for a blogger boycott of the AP. Culture Kitchen is another site which is providing important coverage and attempting to keep focus on the larger issues.
A second organization that seems to be constantly stumbling over its heavy-handedness is Linden Lab. Whether you look at the recent flap over whether adults who wish their avatars to appear in the shape of children would be allowed to participate in birthday celebrations for Second Life, or there repeated struggles with trademark and currency issues, Linden Lab consistently appears to act heavy-handedly, most likely at the advice of their lawyers, and then find themselves in the middle of a major brouhaha with the residents of Second Life.
Then, of course, there is the administration of Lewis Mills High School, which reacted in a heavy-handed manner when a student wrote criticisms of the administration at home one evening. This case is continuing in the Federal Courts, and one member of the administration has already received disciplinary action related to the case, and the lawyer for the administration has received a major warning from the chairman of Connecticut’s Freedom of Information Commission.
Now, let us look for a moment at ‘The Angry Villager Rule’. This was a rule from the game Dungeons and Dragons in the early days, probably over thirty years ago. Essentially, the person running the game could invoke The Angry Villager Rule, where the villagers would gather together and defeat even a very strong player in the game, in a manner similar to how army ants by their sheer force of numbers, could defeat much larger prey.
I’ve always thought of the Angry Villager Rule in terms of the Mandate of Heaven, a Chinese view that a King’s ruled by the blessing of Heaven. This blessing was seen by good weather, good crops and content citizens. Floods and famines were a sign that the mandate had been repealed. The citizens, suffering from floods and famines always seemed to me to be like the angry villagers seeking a new leader.
Perhaps a more current version of the Angry Villager rule is Clay Shirky’s book “Here Comes Everybody”. Internet based tools are enabling angry villagers to organize in response to heavy-handed actions of regimes that are losing their power because of these new enabling tools. Perhaps the folks at the Associated Press, Linden Lab, and Lewis Mills High School should be given a copy of Shirky’s new book.
So, we have a dynamic of people used to using the Internet for more and more of their social interaction, including organizing when the existing institutions don’t understand and attempt to thwart online communities. It is a compelling narrative. However, the means of mediating this dynamic seems to be slow in appearing.
The Associated Press, after a backlash against their heavy-handed DMCA takedown orders, is now talking about engaging bloggers in a discussion about what constitutes ‘fair use’ in a digital age, and even these efforts are receiving criticism from the angry global villagers. They would have been wiser to start this discussion long before issuing any takedown orders.
Even with these feeble efforts, it seems that the Associated Press is making more progress in understanding the new millennium than Linden Lab or the administration at Lewis Mills High School have been.
So, how do we establish a meaningful dialog about how the Internet is changing our social structures? How do we find a space that helps older institutions evolve at the same time as not surrendering some of the boon that the Internet has provided?
Submitted by Aldon Hynes on Fri, 06/13/2008 - 21:04 (Check me out!)
During my time covering the Avery Doninger case, I’ve often pondered better ways of this being handled. Avery Doninger is the high school student who was barred from running for class office after she wrote a blog post at home critical of the school administration, using the word Douchebag and encouraging parents to call the school, when the school administration cancelled, or if you want to parse words the administration’s way, postponed yet again, a battle of the bands known as JamFest.
I don’t know the details of why Jamfest was repeatedly cancelled and rescheduled, but it seems that there should have been a better process. I do know that Avery could have used better language when she encouraged the citizens of the town to get engaged in the issue, and I believe that Avery has learned that herself. I believe that the school administration could have made much better choices in how to take the incident and turn it into a teachable moment instead of a Federal lawsuit.
Now, Principal Karissa Niehoff is being punished for errors that she has made. On May 31st, Principal Niehoff sent an email to Mike Morris concerning details of the case. The email appears to have violated policies of the Board of Education and the Professional Code of Conduct of the State of Connecticut.for School Administrators. As a result, Ms. Niehoff has been asked to write a formal letter of apology to the Avery and her family, has been placed on administrative leave without pay for two days, and has been asked to attend a workshop on the Family Educational Right and Privacy Act. In addition, Ms. Niehoff will be asked to develop at least one goal for the 2008-2009 school year that will show her understanding of the seriousness of this. Perhaps she should start a blog about this and post ideas on how school administrators can better address these issues in a digital age online. Others have suggested that poetic justice would call for her not being allowed to speak at this year’s graduation ceremony.
I applaud the new Superintendent, Alan Beitman, in his efforts to take the situation and make it an educational experience for all involved. I also appreciate the difficulties that a case like this presents. It is difficult to be constrained by advice from lawyers as well as professional responsibility from speaking out when you feel that only the other side is being heard. Yet my interest in the Doninger case has brought me in touch with representatives of other school districts. I have been impressed with the professionalism with which other school administrators address complicated situations, situations much more complicated than the Doninger case.
The age of instant, persistent searchable communications places many new challenges that Ms. Doninger, Ms Niehoff and all of us need to think long and hard about. My interactions with Ms. Doninger leads me to believe that she has learned much about our rights and responsibilities in a digital age. Let us hope that Ms. Niehoff will have similar learning opportunities and will be able to make good use of them.
Submitted by Aldon Hynes on Tue, 06/03/2008 - 09:40 (Check me out!)
“I hate you,” she shouted as she stormed out of the room and slammed the door. Shaken and hurt, I sat quietly. I will give her some time to calm down, and then go to her, let her know that I love her, even if I do things that I think are the best for her and she disagrees, even if she behaves in an inappropriate way. I can help her with that another time.
Does this sound familiar? I suspect that anyone with a teenager at home must have experienced something like this. The teenage years are difficult, not only because of the raging hormones, but also because of the need for teenagers to separate themselves from their parents and authority figures, to establish their own identity, authority, sense of self worth, and find ways to express it.
As much as I hate the phrase, “The Internet has changed everything”, there is a hint of truth about it for teenagers. At home, at night, they can shout and slam virtual doors online. They can call the administration of their school douchebags. They can create MySpace parody pages of their school administrators.
Of course, this presents another problem. These outbursts, which in previous years might have been confined to the family room, are now available for everyone to see, including the douchebags at the central office.
It is reasonable to believe that the school administrators may also be shaken and hurt by these outbursts. Since they are acting “In Loco Parentis” at the schools and since they should be much better trained in dealing with the traumas and dramas of teenagers, you would expect them to handle the situation even better than I have in my house.
Yet school administrators are also human. They err. They fail. Since their parental relationships are based upon a job, instead of deep familial love of the children, they may act in ways that are more focused on defending their reputations and their jobs than on being good educators.
It seems as if this provides a useful framework for understanding what went on with Avery Doninger and the school administration at Lewis Mills High School in Burlington, CT. Avery wrote a blog post at home one evening after a dispute with the school administration about a concert she was helping organize. She referred to the ‘douchebags’ at the central office. Some of the administrators’ feelings were hurt and they lashed back at Avery. The case is currently in the courts. Yet Avery’s case is not the only one of its kind.
From the Student Press Law Center, I’ve learned of the case of Justin Layshock. At his grandmother’s house one evening, Justin created a parody profile of his high school principal, Eric Trosch, intimating that the principal was a drunk and a drug user. Mr. Trosch responded in a manner more like Paula Schwartz and Karissa Niehoff from Lewis Mills High School and focused on his reputation rather than his responsibilities as an educator.
In a rather bizarre move, the school district blamed the ACLU for the “damaged reputation because of the publicity the lawsuit elicited”. So, yet again, we see a school administration more concerned about reputation than pedagogical interests.
In a preliminary ruling on the Layshock case, a judge wrote, “They [the school administration] may not like something students say on their home computers and post on the Internet, but it’s for the parents to decide what, if any, discipline is appropriate.”
Yet a bigger question remains for me. What happens when parents show their children love and stand up for the children when they express themselves poorly, but legally? What happens when children learn that what they say matters and that freedom of speech needs to be protected?
Avery will be spending a year working Americorps. In a subsequent article about Justin Layshock’s case, we learn that Justin spent last summer volunteering at an orphanage in Africa.
In can be very difficult for parents and educators to act in love and in the best educational interests of their children when the children criticize them. I must admit, I don’t always do it right myself. But, by managing ones hurt and focusing on helping the child become more effective in speaking up clearly and strongly, we will create a new generation of leaders, like Avery and Justin and our country, and our world will be better off for it.
Submitted by Aldon Hynes on Fri, 05/30/2008 - 04:33 (Check me out!)
Thursday was a bad day for me. I received an email from a media watchdog organization declining my job application. I received an email from the DNCC declining my application to be a blogger at the 2008 Democratic National Convention in Denver, and I received a copy of the Second Circuit of Appeals decision to uphold the District Courts denial of the Doninger’s preliminary injunction motion. Yet all of these tied together into a fairly consistent theme.
In the rejection letter from the media watchdog organization, I was told that they “needed someone with more traditional journalism experience”. I can see why they say that. They are a fairly traditional watchdog organization. It is important to them that their watching of the media does not create any substantial disruption of the media landscape.
The rejection letter from the DNCC didn’t give any reasons other than that “Several hundred great blogs submitted applications.” It suggested that I check out “The Big Tent” organized by “DailyKos, ProgressNow, the Alliance for Sustainable Colorado, and the Wright Group… with some of the most well known faces in the non-profit and political world, as well as food, drinks, entertainment.” I’m not sure that well known faces and entertainment being gatekept by people making their name by writing about crashing gates is going to bring about any substantial disruption.
In 2004, bloggers at the Democratic National Convention in Boston were a substantial disruption, at least to the media narrative. People wanted to talk with and about bloggers about how they were changing the media landscape. Subsequent research found that the bloggers, myself included, didn’t really bring about any substantial disruption in the media landscape, but at least coming into the convention there was a foreseeable risk that that might occur.
Many great blogs have been credentialed this year and the Democrats have chosen to have a blog credentialed to sit with each State delegation. This could bring a whole new perspective on the convention, creating a new foreseeable risk of substantial disruption, but I worry that it may not. It may be just part of the new generation of political media, the new boys on the bus.
I’ve often commented about blogs being passé. They are so 2004. “New Media” is being replaced by “Social Media” and I wonder how much the bloggers of 2008 will have moved beyond 2004 style blogging. What role will streaming multimedia, microblogging and lifestreams fit into the picture? That may be where the real potential for a foreseeable risk of substantial disruption of the political media process exists this time.
All of this takes me to the Doninger case. The Second Circuit wrote that “Because Avery’s blog post created a foreseeable risk of substantial disruption at LMHS, we conclude that the district court did not abuse its discretion. We therefore affirm the denial of Doninger’s preliminary injunction motion.”
The substantial disruption that Avery’s words in the blog post are accused of creating a foreseeable risk of, is citizens in the school district getting more involved the school and thereby in the community.
I disagree with the court that this sort of ‘substantial disruption’ is something the existing political structure should be protected against. Instead, the ability to create this sort of ‘substantial disruption’ is exactly what our Constitution is supposed to be protecting the right of each of us to participate in.
The candidate at the Democratic National Convention most likely to become the Democratic Party Nominee for President is running on the slogan “Change We Can Believe In”. We are most likely to see a candidate at the podium who says, “I’m asking you to believe. Not just in my ability to bring about real change in Washington . . . I’m asking you to believe in yours.”
This candidate has brought many new people into involvement with the political process, similar to how Avery worked to get more people involved in the politics surrounding her high school.
So, I am frustrated. Unlike Barack Obama or Avery Doninger, I am not managing to generate a foreseeable risk of substantial disruption to current media and political status quo. Yet looking at the successes of Barack Obama and Avery Doninger, I continue to have hope that I may yet contribute to such substantial disruptions.
Submitted by Aldon Hynes on Fri, 05/23/2008 - 07:44 (Check me out!)
If I were to summarize the ‘Activism and Education Using Social Networks’ track at Computers, Freedom and Privacy yesterday, I would boil it down to putting a human face on advocacy organizations and seeking due process online. What was most interesting was that during the discussions, I watched these processes happen online.
Eric spoke about the new ACLU Blog, “because freedom can’t blog itself”. He spoke about the difficulties in working out the policies of what could get written by whom for the blog. He noted the contrast between traditional advertising, expensive, glossy, and not reaching the younger generation, and online content. He noted that sites like Facebook, MySpace and Flickr are not all that fancy in their graphical design, yet it is the user generated content and the first person perspective that is so compelling. As he spoke about this, he brought up the ACLU’s Flickr page, which to my surprise, included a picture of a good friend of mine. I quickly posted a link to the Flickr photo on my friend’s wall in Facebook. Ah yes, the power of the personal.
We broke into hands on sessions and I spoke with many different people. A neighbor, who is active in town politics and works for Yale was there and I spent some time talking with her. A friend of one of the conference organizers from Tribe was there and we talked a little bit. I showed a few people Second Life and talked about the role of Second Life in disability rights advocacy.
This led me to a fascinating discussion with Dr. Linda D. Misek-Falkoff from the United Nations and the Center for Cross-Cultural Understanding. She spoke about RatifyNow.Org, a website to support the global grassroots efforts to ratify the United Nation’s Convention on the Rights of Persons with Disabilities. She has a wonderful set of videos of people in the U.N. talking about the convention. She also understood the importance of putting a human face on large organizations. She took a quick video of me saying hello to ambassadors and activists fighting for the rights of persons with disabilities.
The afternoon led to a brainstorming session where the topic of social network service providers failing to provide adequate due process was discussed. In particular, Facebooks tendency to ban people automatically because they try to send too many messages, add too many friends, or similar activities. A friend of mine was recently banned this way, and has gotten nothing but automated responses to his requests. A few of us are talking about setting up a group to address this issue.
As this discussion was going on, I received a Twitter from Andy Carvin about Ariel Waldman’s blog post about Twitter refusing to uphold its Terms of Service. Specifically, the post centered around Twitter failing to deal with harassment issues.
At a previous session at CFP there were some great discussions around the issue of cyber-harassment and it will be a topic of one of this morning’s sessions. Around an hour later, a bug report was reported on GetSatisfaction and the blog post got Dugg. The next hour saw the article make the front page of Digg and an hour later Jason Goldman of Twitter responded,
Twitter does not get involved in these disputes between users over issues of content except in limited circumstances. Twitter is a provider of information, not a mediator. Specific physical threats, certain legal obligations, privacy breaches of specific types of information (e.g. SSN, credit cards), and misleading impersonation are some cases where we may become involved and potentially terminate an account.
This only added fuel to the fire. Evan Williams of Twitter twittered.
Note: Before joining a mob, you might want to check if everything they're saying/assuming is true.
This too, fueled anger at Twitter, already under lots of criticism for its spate of recent outages. It is worth noting that 12 other people noted on GetSatisfaction that they have the same problem, almost as many people as work for Twitter.
About three hours after this, Biz Stone, stepped in and said
The fact that so many of us can have differing opinions without having even reviewed the content we're discussing highlights the difficulty of this issue. In fact, Twitter recognizes that it is not skilled at judging content disputes between individuals. Determining the line between update and insult is not something that Twitter nor a crowd would do well.
All of this returns back to the issue of due process. The fact that so many people are so concerned about this highlights the importance of the issue. Biz states, “Twitter is a communication utility, not a mediator of content.” This harkens back to the issues of Section 230 and communications utilities not being liable for content.
Yet it misses a very important point. Twitter, like Facebook and Second Life, which have also have similar issues, is not just a communication utility. All of them are communities. They are communities dependent on privately run communication utilities. These communities lack recourse to any sort of due process.
Biz’s comment about determining the line between update an insult not being something that either Twitter nor a crowd could do well seems ill advised to me. Someone needs to make that determination. Twitter can try to do it. Twitter can encourage the crowd, the community, to join in the effort to determine the line. If that doesn’t happen, the line is likely to be repeatedly brought to the courts and to legislatures to be decided. Either that, or the community will simply move to some other communications utility which provides better recourse to due process. None of those options seem particularly good for Twitter.
The activism panel at Computers, Freedom and Privacy spent time struggling with putting a human face on organizations and in seeking due process in online communities. The ACLU seems to understand these issues very well. Let us hope that corporations like Twitter, Facebook, and Linden Lab makes some progress on this topic as well.
Submitted by Aldon Hynes on Mon, 05/19/2008 - 21:45 (Check me out!)
Tomorrow marks the opening of Computers, Freedom, and Privacy 2008. This is an annual conference that has been held since 1991. This year, it will be in New Haven, CT, which makes it very convenient for me to attend.
As with most conferences, I like to read the program ahead of time to try and decide which sessions I’ll try to attend. Often it is hard to choose with many panels happening at the same time. Frequently, I make last minute choices as I wish from one hour long panel to the next. I may run into this later in the week, but the first decisions seem pretty straight forward to me.
Tuesday starts off with a choice between Scott Spetka leading a workshop entitled “Maintaining Privacy While Accessing On-line Information”, and Mike Godwin leading a workshop entitled “Constitutional Law in Cyberspace”. Through my coverage of the Avery Doninger case, I’ve been steeped in constitutional law around freedom of speech issues, at least as it applies to students in public high schools in the United States. Mike Godwin is general counsel of the Wikimedia Foundation. The workshop should cover a much great array of topics than just the freedom of speech issues I’ve been following. Fortunately, it is three hours long. Even that amount of time will probably only allow the surface to be scratched.
The afternoon provides a choice between Robert Ellis Smith’s presentation, “A Short History of Privacy” and panel organized by Lillie Coney, Associate Director with the Electronic Privacy Information Center (EPIC) and moderated by Tova Wang, Vice President of Research at Common Cause about entitled, “e-Deceptive Campaign Practices: Elections 2.0”. Both presentations sound very interesting. Yet by the sounds of it Robert Ellis Smith’s presentation will be based substantially on his book “Ben Franklin’s Web Site”. It sounds like a great book, and I’ll put it on my reading list. However, I think I’ll attend the campaign practices session. I should probably say hello to Tova, since my wife now works for Common Cause. Also, the panel has a bunch of interesting folks. It should be fun.
Wednesday morning start off with “Presidential Technology Policy: Priorities for the Next Executive”. It will be co-moderated by Ari Schwartz, Vice President, Center for Democracy and Technology and Susan Crawford, Visiting Professor of Law at Yale Law School. The panel will include Douglas Holtz-Eakin who is Senior Domestic Policy Advisor for the McCain '08 Campaign and Daniel Weitzner who is a member of the Technology Media and Telecommunications policy committee advising the Obama '08 Campaign. I hope the discussion will be lively and fear that the two hours allotted for it may not be enough.
Wednesday afternoon starts the more traditional conference fair with concurrent ninety minute long sessions. I’ll probably start picking which of those sessions to attend sometime around lunch on Wednesday.
So, I hope I have the stamina to attend and write coherently about what looks like a fun conference.
Submitted by Aldon Hynes on Fri, 05/09/2008 - 17:40 (Check me out!)
Former U.S. Senator, Former Presidential Candidate and Author Gary Hart addressed a group of lawyers, legislators, candidates and activists this afternoon at the offices of Shipman and Goodwin in downtown Hartford this afternoon. Prior to Sen. Hart’s presentation, people gathered, shared sandwiches and discussions about the legislative session that has just ended. Folks more often seen wearing T-Shirts supporting one candidate or another put on their suits to join the discussion.
The event was sponsored by The Connecticut Lawyer Chapter of the American Constitution Society and the Council for a Livable World.
Sen. Hart started off by acknowledging that the priorities for a new administration would be a long and complex agenda, and he chose to focus on two key themes, security and the restoration of constitutional government in our county. The next president should start off his or her administration with a televised speech to the nation about the importance of our constitution and the checks and balances it is supposed to afford us. The next president should talk about why an independent judiciary is so important and about the dangers of the unitary executive theory that has been espoused by members of the current administration.
Submitted by Aldon Hynes on Fri, 05/02/2008 - 09:28 (Check me out!)
From May 20th through May 23rd, the 18th annual Computers, Freedom, and Privacy conference will take place in New Haven. This year’s topic is Technology Policy ’08. Early bird registration ends today, so if you are thinking of attending and haven’t signed up yet, today would be a great day to sign up.
In addition, “The Yale Journal of Law & Technology (YJoLT) is seeking essay-length submissions concerning the technology policy platform of the new American presidential administration.” The deadline for the entries is May 5th, and details can be found on the YJoLT Essay Contest
More information can be found at the CFP 2008 Main Page as well as many other sites they list, such as their Facebook Group and their blog. On their blog they have a post entitled Bloggers Wanted. If you are a blogger and planning on attending, please let the organizers know.
It looks like a great conference and I look forward to attending as much of it as possible.
Submitted by Aldon Hynes on Thu, 03/06/2008 - 10:48 (Check me out!)
Over time, the Avery Doninger case has evolved from a draconian overreaction by narcissistically injured petty school bureaucrats to a discussion of the school district making poor use of taxpayers’ money by missing important teachable moments and wasting money on a lawsuit they should have avoided. On Tuesday, the important underlying issues of Free Speech, especially as it relates to the Internet took center stage as the case was heard before the Second Circuit of Appeals.
As a quick summary, last April, Avery Doninger, who was then Class Secretary of the Junior Class wrote a post on LiveJournal one evening at home where she used a derogatory phrase to describe members of the school administration based on their handling of a concern she and others were organizing at her school. The school administration responded by saying she could not run for re-election as Class Secretary and by refusing to honor the results of the election where she won as a write-in candidate. Avery and her mother have sued the school for violating her freedom of speech.
Submitted by Aldon Hynes on Wed, 03/05/2008 - 11:49 (Check me out!)
Yesterday, I went to the U.S. Second Circuit to observe the oral arguments in the Doninger case. However, before we got to those arguments, there were several other cases being addressed. It is useful to look at these cases a little to get some background for the Doninger case. In my reflections about the courtroom, I observed that there were two busts at the entrance to the courtroom. One was of Learned Hand, and the other was of Henry Friendly. Judge Hand is noted for his cases involving freedom of speech. However, that is not all that the court hears. Judge Friendly is noted for his expertise in Securities Law and that was part of the mix.
The first case seemed a bit arcane and, at least to me, uninteresting. I’m sure that it was interesting to people with a vested interest. As best as I could make out, it is continued legal wrangling about Computer Associations and a Special Litigation Committee that they set up to investigate Charles Wang, founder of Computer Associates, of fraudulent accounting. Key issues seemed to be whether or not cases were filed in a timely fashion by the right people or legal entities.
This was followed by questioning about several motions. A representative of the National Labor Review Board appeared by the judges to discuss the wording of some document. There was a long complicated discussion about some company in Brazil and trademark issues. A lot of people were very interested in this case and left after the arguments. There was another trademark case. Both of these seemed to be about who would be permitted, or not to permitted to take which legal actions, when and where. Like the Computer Associates case, this is probably really important to some people, but I didn’t see anything important coming out of the cases.
Then, there were two cases where sentence reductions were argued. One case centered around ‘robotic incantations’. The key issue seemed to be whether or not the judge in assigning the sentence properly considered all the factors, or simply rubberstamped the sentence. In another case, a repeat offender was given 96 months for possessing 50 grams of crack cocaine, even though he had worked with the government and worn a wire. In this case, one judge expressed concern about the prosecutors being draconian and pursing ‘vindictive prosecution’. I wondered if this would be a foreshadowing of the Doninger case, where people have asserted that the school administration was draconian and vindictive.
The other interesting case was of an asylum seeker. The person had fled from China after being a supporter of the Falong Gong. The representative of the immigration service argued that since we did not know why the police ripped the shirt off of the asylum seeker or why they came to his house, we cannot assume it is because of persecution. As I listened to him, I thought of our responses to genocide. Would he have said the same thing about not knowing why Hitler’s S.S. agents coming to the door of a person who has spoken sympathetically of Jewish people. I was disgusted by the performance of the representative of the immigration service.
This case was perhaps the closest to having meaning for me. One of the things that Avery has been focusing during the time when she has been deprived of being Class Secretary is genocide issues. She has testified before the Education Committee in Hartford about teaching genocide awareness. We do need to think more about how we deal with genocide, with political persecution, as well as the simplest forms that it takes in our schools, bullying.
All of this sets the background for the oral arguments in the Doninger case.
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