Part III: Introduction
We’re going to switch gears a bit here. Until now we’ve been focusing on our participation in media, as consumers and as creators. The next several chapters look more widely at topics that are not as much about what we can do individually as what we need to consider as a society. Why the broader brush? Because the issues I’m going to discuss are intertwined with media, participatory media in particular. The success of mediactivity depends on them. When we look at things like copyright and other legal issues, as we will do in the next chapter, we are looking directly at how well any of us may be able to participate in tomorrow’s media. When we consider the social customs of the recent past, and agree that we need to update them in the new century’s flourishing digital age, we are understanding another key part of our participatory culture. And when we consider who should be bringing mediactive values to our children (and ourselves), we’re considering a broader effect than the impact on our own immediate needs. Our work won’t be done even when we get all of this. I noted early in the book that we’re only in the early days of this amazing and, I believe, wonderful evolution. That means we have a long way to go, and it’s worth considering what pieces of the puzzle are still obviously missing. Of course, once we locate them, we’ll realize how much more there is to do. We’ll be working on this for our lifetimes. So will our grandchildren, for theirs. As societies and within our narrower communities of geography and interest, we’ll get closer and closer to something vital for the function of self-governing societies: a diverse, robust and trustworthy mediasphere. Remember, we can’t do it alone.
Chapter 9 Laws and Norms In the spring of 2008, the popular blog BoingBoing lampooned some terms of service that a company called MagicJack had imposed on users of its Internet telephone service, as well as a misleading visitor-counter on its website. Discussing the terms of service, BoingBoing’s Rob Beschizza explained (among other things) that users had to agree that the company could analyze their calling patterns to send them targeted advertising, and that it could force customers to arbitrate any disputes in Florida. MagicJack sued, claiming the posting had caused irreparable harm to its reputation. BoingBoing, an ad-supported business that’s insured against defamation claims, was not intimidated and fought back. In 2010, a California court ruled that MagicJack had no case because what Beschizza had written was a reasonable portrayal of what MagicJack itself had published in its terms of service and on its website. The judge also ordered the company to pay a big portion of BoingBoing’s legal fees. Several of BoingBoing’s contributors are friends of mine, and I was overjoyed to hear that they’d successfully fended off a company that was trying to use the courts to shut down protected free speech. The case highlighted the importance of a robust marketplace for ideas. But the bloggers’ victory was also a reminder that some risks accompany the exercise of our First Amendment rights. While the BoingBoing case was moving through the courts, America’s media-critic-in-chief, President Barack Obama, cautioned a group of 14- and 15-year-olds to be careful about what they posted online. His advice was prompted, during a Virginia school visit, by a query from a student who’d announced his intention to become president some day. According to the White House’s transcript, the current president offered, in the first of what he called “practical tips” for ambitious young people, this suggestion: I want everybody here to be careful about what you post on Facebook—because in the YouTube age, whatever you do, it will be pulled up again later somewhere in your life. And when 126 Mediactive you’re young, you make mistakes and you do some stupid stuff. And I’ve been hearing a lot about young people who, you know, they’re posting stuff on Facebook, and then suddenly they go apply for a job and somebody has done a search and, so that’s some practical political advice for you right there. Obama’s advice was conventional wisdom, and was undoubtedly correct in today’s world. I hope he’s wrong in tomorrow’s. The BoingBoing case and Obama’s cautions, which I’ll discuss in more detail later, combine all sorts of issues that we need to consider in a democratized media world: law, social customs and more. How we behave online has ramifications. Let me reassure you: If you’ve taken to heart the principles I’ve outlined in earlier chapters, you can much more easily minimize whatever risks there may be in your own participation online. How? Be honorable. It’s that simple. That said, we can’t reduce risk to zero, partly because the legal system invites abuses from people whose goal is to shut down speech they don’t like. Meanwhile, the system is evolving to adapt to new challenges. Laws increasingly determine how we can use online resources as active consumers. This starts with whether we can find the resources at all. Many governments take great pains to block what they see as dangerous (usually for them) or immoral material. According to the OpenNet Initiative, a project that documents Internet filtering and surveillance, a number of countries actively censor what their residents can readily see. Along with controlling what we get to see, both governments and private entities track our every move via digital surveillance.* Some laws and regulations, especially in the copyright arena, give enormous power to large enterprises that make decisions about our Internet use. Others apply to everything from our comments on other people’s sites to the material we publish on our own, as the BoingBoing example and others in this chapter will show.
*You might imagine this to be merely a Chinese problem, or an issue in Saudi Arabia and other places under authoritarian rule. Sadly, the U.S. government is making similar noises. As I write this, Congress is considering a bill, aimed at stopping copyright infringement, that would invite—and in some cases force—Internet service providers to block access to sites deemed to host troublesome material, even if those sites also host totally unobjectionable content. Dan Gillmor 127 Again, I don’t want to scare you here. The odds that you will get in unjust legal trouble are slim. But as you’ll see in the pages ahead, forewarned is forearmed; it’s better to know about something ahead of time so you can prepare, however remote the possibility may be that you’ll be affected. Laws are only part of the issue, as Obama’s cautions demonstrated. We also need to adjust some attitudes and learn some new skills— individually and as a society—in order to keep up with the collaborative communications tools that not only empower us in such amazing ways, but also can cause difficulties if we’re not fully aware of what we’re doing. These attitudes and skills are about what sociologists call norms— principles of behavior that, according to Webster’s definition, “guide, control, or regulate proper and acceptable behavior.” When I use the word here, I’m talking about societal acceptance, about generally agreed ways to behave. In Japan, for example, it’s a norm to take off your shoes when you enter someone’s home, and bow when greeting someone; in America we tend to keep our shoes on and shake hands. I’m emphatically not talking about laws and regulations, which are enforced by governments; norms are enforced, if that’s the right word, but by you and me. The principles outlined in Chapters 2 and 5, which undergird this entire project, are fundamentally about norms, as is Obama’s advice and some of the other material presented later in this chapter. There can be negative consequences for acting outside the norms, but you’re generally free to do so as long as you don’t mind the consequences. Law and Order Let’s look at a few of the key legal issues first. These include the way laws affect our basic rights as users of media as well as our legal responsibilities in such areas as defamation, copyright and privacy. Keep in mind that this survey is, once again, a high-altitude look down at the landscape, not a detailed map or a legal guide. I’m not a lawyer, and nothing here is intended to be legal advice. Privacy and Surveillance The same tools that give us such incredible freedom to create and share are also a cause for caution. As the Electronic Frontier Foundationsays, “New technologies are radically advancing our freedoms, but they are also enabling unparalleled invasions of privacy.” 128 Mediactive It’s possible to invite some of the invasions, of course, even in routine use of the Web. If you sign up for mobile phone social networks that broadcast your location to friends and others who use the same services, you’re giving up some privacy. If you post on Facebook, you’re being public. As we’ll discuss later in this chapter, we all need to think about how other people—including people we don’t imagine to be following us—could make use of the information we radiate. Beyond the information we release willingly is a cornucopia of information released about us by others. A GPS-enabled mobile phone tells the mobile network company and anyone with access to the carrier’s data where you are and where you’ve been. And when you shop online, or even just browse, you are providing data that’s the rough equivalent of having someone follow you around a shopping mall with a video camera, recording and storing everything you buy or even look at. Americans know (because journalists have ferreted out the story) that their government created a vast and illegal surveillance system that was used to monitor American communications for years during the Bush administration. For all we know, that monitoring is still happening; the Obama government claims essentially all of the same rights as its predecessor to do what it pleases, never mind the Constitution. That’s bad enough, but the companies that provide digital technology and network services have unparalleled abilities to watch your every move as well. And many cyber-criminals floating around those networks (working remotely from places like Russia, in many cases) have the technical sophistication to play malevolent games with your communications, including financial ones. There are laws supposedly protecting privacy, or at least misuse of data. The problem is that they’re rarely enforced, and the penalties for violating them are not much of a deterrent. Just as you need to put much sturdier locks on your door in a bad neighborhood, you need to take steps to preserve (what’s left of) your privacy online. One of the most important measures is actually the simplest: Keep your software up to date, applying the bug fixes and security “patches” companies provide. Another is to use Web browser plug-ins such as the NoScript add-on for the Mozilla Firefox browser, which lets you block many of the kinds of drive-by attacks you can encounter in your routine Web browsing. As you increase your mediactivity from the routine, it’s honorable to give users of your blog or website as much privacy as possible, including protecting their data from being extracted and used by a Dan Gillmor 129 hacker. Just as you need to keep the software you run on your own computer current, you should be as certain as you can be that your Webhosting provider is doing the same on its own systems. Sidebar: Privacy and Facebook—Why I Quit and Rejoined I use Facebook for several reasons. One is my professional interest in keeping track of what’s happening in the planet’s largest social network, including what application developers and users are doing there. More personal is that some of my friends—actual friends—use the site, and Facebook helps me stay in touch with them. But when Facebook made a dramatic change to its privacy structure at the end of 2009, I concluded I could no longer trust the service, even with the limited amount of things I’ve said and done there since I got an account several years ago. I continue to admire the company’s accomplishments in many other ways, so why did I no longer feel safe and sound in the hands of Facebook? Even though some of the changes made in the privacy settings were actually helpful—notably, the ability to set privacy options for individual posts—the overall bias was troubling. As an analysis by the Electronic Frontier Foundation concluded, the new settings “push Facebook users to publicly share even more information than before. Even worse, the changes will actually reduce the amount of control that users have over some of their personal data.” Facebook’s extremely smart leaders know perfectly well that the majority of users are likely to accept these suggestions. Most people say yes to whatever the default settings are in any application, even though we should always be wary of the defaults, precisely for reasons like this. I wasn’t very happy with my Facebook situation in any case. Early on, I said yes to just about everyone who asked me to “friend” them, including people barely knew and some I didn’t know at all. The privacy changes—and my continuing uncertainty about what I was sharing, given the still-large number of pages you have to look at to modify your settings—made me realize I’d rather take fewer chances. So I made a fairly drastic change. I deleted my account. Then I started a new one. Actually, I scheduled the old one for deletion, which is all Facebook allowed. The company figures, perhaps correctly, that some people will have made this decision rashly and wants to give them a chance to 130 Mediactive reconsider. And it’s clearly in Facebook’s business interest to minimize the number of cancellations. It wasn’t easy to figure out how to delete the account, which no doubt is part of the company’s strategy, too. If you go to the Settings page, the only option offered is to “deactivate,” not delete. But a little searching on the site turns up a Facebook Group called “How to permanently delete your Facebook account” (with more than 70,000 members at the time of this writing)—which in turn reveals an actual delete-account form located at still another Web address that Facebook doesn’t reveal in any prominent way, if at all. After creating my new account, I checked the default privacy settings. They’re pretty un-private, in my view, sharing way too much with people you don’t know. I systematically went through the various screens—Facebook makes this chore both annoying and obscure—to ratchet down the settings to something I can live with. We all know Facebook profits from exposing to search engines and advertisers the largest possible number of pages by the largest number of people willing to create stuff and make it public. Marketers drool at the prospects Facebook offers, and Facebook’s entirely rational goal is to make profits in almost any way it can. What’s in the corporate interest, however, doesn’t necessarily match what’s in my interest, or yours. So I’m still at facebook.com/dangillmor—though my real Web home base is dangillmor.com, as we’ll discuss in the next chapter—but now I have just a small selection of Facebook friends. I’ll be adding more, but not in any hasty way. Freedom to Tinker: Who Owns Your iPhone, Anyway? You may think you own the device you bought last week from a retailer. But it is increasingly the case that what you own is only the hardware; you don’t own the right to use it the way you want to use it, even for entirely legal purposes. The consequences of this reality have been researched deeply by Jonathan Zittrain, a Harvard law professor, friend and colleague from when I was a fellow at the Berkman Center for Internet & Society. He is also the author of The Future of the Internet—and How to Stop It. Zittrain describes a potential future in which the very qualities that have made the Internet so valuable—notably, its openness to innovation by everybody—are in danger. Whereas the personal computer and the early Internet were a wide-open collection of technologies on which anyone Dan Gillmor 131 could build software and services, now governments and the technology and media industries increasingly want to clamp down on your freedoms. Zittrain writes: A lockdown on PCs and a corresponding rise of tethered appliances [like the iPhone] will eliminate what today we take for granted: a world where mainstream technology can be influenced, even revolutionized, out of left field. Stopping this future depends on some wisely developed and implemented locks, along with new technologies and a community ethos that secures the keys to those locks among groups with shared norms and a sense of public purpose, rather than in the hands of a single gatekeeping entity, whether public or private. The iPhone and iPad are the best examples yet of a controlled ecosystem, and not just because you have to tether them to a PC or Mac in order to fully manage the music, songs, apps and other files on these (admittedly lovely) devices. With the Macintosh computer, Apple built an essentially open ecosystem for software developers. Anyone could write and sell (or give away) software for the Mac, and still can, just as they can for Windows and Linux and other computer operating systems. But with the iPhone and the iPad, Apple expanded on its experience with the iTunes Music Store, creating a system for retailing applications designed for these devices—but only if Apple has approved them. The number of applications available is said to exceed 300,000, but there are welldocumented horror stories featuring Apple’s refusal, often on mysterious grounds, to allow specific applications to be sold or even given away to iPhone/iPad users. You can still create what you want on the Web, and iPhone users can still find it via the device’s Safari browser—but sorry, no videos using Adobe’s Flash player that runs most videos on desktop and laptop computers. Meanwhile, if you want your audience to experience your work in any way that uses the iPhone or iPad hardware to its fullest capabilities, you need Apple’s permission to distribute the app that does this. And, then, if you get permission and charge for your application, or for any services you provide via your application, Apple insists on taking a cut of the money. Google’s Android mobile operating system is more open, but the company’s real customers for it are the mobile carriers—AT&T, Verizon, etc.—that are busy locking down what their customers can do with their devices. Control-freakery is endemic, and dangerous. 132 Mediactive Amazon, a company in which I own some stock, has locked down its Kindle platform, too. The Kindle is the most popular e-reader by far, and while I own one I’m extremely unhappy about Amazon’s hard-nosed insistence that it can control your Kindle. The company was appropriately embarrassed (and had to pay out a court settlement) for remotely deleting several books by George Orwell, including 1984—oh, the irony—from the Kindles of people who’d bought the editions from what turned out to be a publisher that was unauthorized to sell them. While Amazon apologized for its actions, it didn’t say what would happen if some judge or government agency ordered it to remove books or other content from the devices in the future. This is not just about your right to read and use media as you wish. It is also about the way you will be able to make available what you create in the future. If you believe in freedom of speech, and see mediactivity’s value to our lives, our culture and our democracy, you should be deeply alarmed by the trends we’re seeing. Open Networks Apple’s attitude is alarming enough, but the company is a freedom fighter compared with the major telecommunications companies. Brazen control freaks, they don’t have enough competitors—as Apple still does—to give them the slightest concern for the independent desires of their customers. In We the Media I wrote that we are heading into a world with only one, two or at most three broadband telecommunications providers serving any given geographical community. I asked, back in 2004: Should giant telecommunications companies—namely cable and local phone providers—have vertical control over everything from the data transport to the content itself? For example, as I was writing this book, Comcast, the cable monopoly in my area, was trying to buy Disney. The attempt failed. If this happened, Comcast could have decided to deliver Disney’s content online more quickly than someone else’s, discriminating on the basis of financial considerations. Such a regime would have been a disaster for the unimpeded flow of information. We should insist on a more horizontal system, in which the owner of the pipe is obliged to provide interconnections to competing services. Unfortunately, today’s regulatory and political power brokers lean in the wrong direction. Dan Gillmor 133 Late in 2009, Comcast announced it was buying NBC Universal, one of the biggest “content” companies on the planet. It’s time to worry, and to act. What’s at stake? Free-speech activists have worried for years about the corporate consolidation of mass media. In the era when mass media held nearly total sway, that was a reasonable fear. And to the extent that Big Media holds onto its huge audiences, it’s still a legitimate issue. But now we face a consolidation that dwarfs anything contemplated before: the “broadband” oligopoly’s increasing control over what we can do with our media. The cable and phone giants are determined to decide what bits get delivered in what order, at what speed and at what time—if at all—to the people who want them. We are heading toward a level of media control that, if the telecom companies succeed in achieving it, will threaten every bit of the work I and many others have been doing for the past decade—not to mention our mediactive future. What do these companies want? Their plain goal is to turn the Internet into something that resembles cable television, where they decide which channels you need and which you’ll pay extra to get (in this case, penalizing you if you want your own choice of feeds, videos and the like at the same speed you get their preferred ones). What’s especially galling is the telecom companies’ claims that they have a right to control your choices because the networks are entirely their own property. Historically, they got this property via monopoly deals with local governments, allowing them to tear up streets and claim rights of way in a system that no new competitor can possibly duplicate. Serious competition, except in a tiny number of places, is unlikely, barring some advances in mobile technology that are more theoretical than imminent. The mobile carriers are, if anything, even more restrictive. They have a reason at the moment, given the limited capacity of their networks. But in moves that can’t remotely be blamed on network availability, they have curtailed all kinds of activities that they deem contrary to their own interests: notably, preventing Internet-based voice applications from competing. Alarmingly, Google—once a prime mover for “network neutrality,” the term open-network advocates use to describe the kinds of networks we need—has joined with Verizon in a public statement all but abandoning the principle for mobile networks. The Federal Communications Commission has been looking at network neutrality, but in the end Congress will decide this, and Congress has been a pawn of the telecom industry for too long. You should care about your ability to read and watch what you want, and the ability of 134 Mediactive others to read or watch what you create, in a fair marketplace. And if you do care, you should tell the people who represent you in the U.S. House and Senate that you do, and why. Copyrights and Takedowns One reason network providers are clamping down is pressure from the copyright cartel composed of the Hollywood movie studios and the big music recording companies. They call copyright infringement by a different name—“piracy”—and they’ve relentlessly protected their mass media content from anyone who might use it in any unauthorized way. You have rights, as a consumer and a mediactive creator, as part of the broader “fair use” doctrine. For example, you can make personal backup copies of the music you buy. You also have the right to use other people’s work in limited ways to create new works. (The key word there is “limited”—don’t cut and paste large parts of other people’s work, period; and always, always credit the creator whose material you do quote or reuse.) The cartel says it has nothing against fair use, but the policies it advocates would effectively do away with that right and many others. Its members want to tell you when you can copy anything for any reason. This is an attack on journalism, among other things (including scholarship). The more we need permission to use other peoples’ work, the less building we’ll all do on what’s come before. Yet quoting is at the heart of cultural and scientific progress. This doesn’t mean we should do away with copyright. I’m a big believer in its proper uses, which include balancing the incentive to create with the public’s right to use what others have created in new ways. One of the heartening developments in recent years has been the growth of Creative Commons, an organization that helps people create and use material under a system that shares the creators’ rights with the general public in ways that promote further creative development. This book, like my last one, is published under a Creative Commons license permitting you to freely copy it for non-commercial purposes, and to build on what you find in new works provided that you give full attribution and release any new works based on this one under the same terms. Copyright holders have a powerful weapon online: the “takedown notice” they can send to a site where, they allege, someone has posted works in an infringing way. If the site owners put up the material themselves, they are legally liable (although usually the copyright holder Dan Gillmor 135 asks for no punishment beyond having the content removed). If a site user posted the material, the site host can avoid legal trouble by complying with the takedown notice. If whoever posted it challenges the notice, saying the material is not infringing, the content goes back up, and the copyright holder is then required to litigate if he or she wants to force the issue. It sounds like a good system, but in practice, copyright holders have abused it. If the person being threatened with a lawsuit has the means to fight back, though, the plaintiffs can be held financially liable for “abusive” claims—as Diebold, a company that sold electronic voting machines, did when it “knowingly misrepresented that online commentators, including IndyMedia and two Swarthmore college students, had infringed the company’s copyrights.” In that case, Diebold was sued successfully by the Electronic Frontier Foundation and had to pay $125,000 in damages and fees. Some Legal Resources The Citizen Media Law Project (CMLP) is based at Harvard University’s Law School and the Berkman Center for Internet & Society. I’m biased toward this project, because I co-founded it and blog occasionally on the CMLP website. The project features resources ranging from a database of legal threats to, most recently, the Online Media Legal Network, which “connects lawyers from across the country with online journalists and digital media creators who need legal help.” The Electronic Frontier Foundation, a non-profit based in San Francisco, works to preserve our liberties in the technology and cyberspace spheres. I also have some bias here: In 2002 the EFF honored me with one of its annual Pioneer awards, and I’m friendly with the organization’s founders, John Perry Barlow, John Gilmore and Mitch Kapor. (I’ve also been a financial donor to the EFF, and I urge you to do the same.) There’s an enormous amount of useful material at the CMLP and EFF websites. I’d strongly suggest that you look around, especially if you have any questions about what you might encounter as a creator—or host—of online content. They aren’t the only excellent resources, and we’ll list many other sources on the Mediactive website as well. Defamation and Other Risks What is defamation? According to the EFF: Generally, defamation is a false and unprivileged statement of fact that is harmful to someone’s reputation, and published 136 Mediactive “with fault,” meaning as a result of negligence or malice. State laws often define defamation in specific ways. Libel is a written defamation; slander is a spoken defamation. You are not exempt from laws just because you say things online. If you libel people on your blog or in a comment on someone else’s blog, they can sue you and win. If you follow the principles in Chapter 4, you’re unlikely to libel anyone. Does that mean you’ll be immune from being sued? Unfortunately, no. Anyone can sue anyone else for the cost of filing a court fee, and judges rarely punish people for filing lawsuits they can’t win (even if they probably know they can’t). Moreover, whereas in some countries, such as the United Kingdom, libel defendants have to prove that what they’ve said was true, in the U.S. the plaintiff has to show that it was false (and public figures additionally have to prove that the statements were made maliciously or with indifference to the truth). Since defamation and libel do happen for real, and can hurt people, you should be careful about what you say online, just as you would if you were giving a speech. From the principles laid out in Chapter 5, it should be obvious that you need to be accurate when you say something negative about somebody. I don’t say this to scare you away from holding up the light to wrongdoing. Getting incontrovertible evidence of your claims and being fair to the people you criticize will be your best insurance against a libel lawsuit—but no amount of care is foolproof. Defending yourself, even if you’re absolutely in the right, is expensive. So learn ahead of time ways to avoid legal risk, even if you can’t prevent it entirely. The EFF has an excellent Legal Guide for Bloggers. Here are several other valuable resources: The Knight Citizen News Network’s “Top 10 Rules for Limiting Your Legal Risk”: A set of concepts and solid advice for minimizing the risk you expose yourself to. The Citizen Media Law Project’s Legal Guide: This increasingly comprehensive guide has an enormous amount of content dealing with individual states. One of the best features is a “decision tree” that helps you decide whether you need separate insurance for defamation and other legal risks beyond what you may already have in your homeowner’s or renter’s policy. Online Media Law: The Basics for Bloggers and Other Online Publishers. This is a multimedia course offered via the Poynter Dan Gillmor 137 Institute’s News University. Once you pass it you may be eligible to buy specially priced insurance. According to Kimberley Isbell, an attorney with the Harvard project and a Berkman Center Fellow, what kinds of issues you cover and how you do it determines the level of risk: Applying basic journalistic standards, such as accuracy and fairness, reduces the risk. Isbell also stresses the importance of being careful in how you use other people’s work, to avoid copyright troubles. Not all the news is scary in this arena. If you or your organization host an online conversation, you benefit from one of the most positive parts of Congress’s 1996 telecommunications overhaul: an exemption from defamation and similar claims. This exception does not extend to the person doing the defamation. This protection for site owners has done incalculable good for freedom of speech. Photographers, Stand Your Ground One of the most pernicious escalations against media creators in recent years has been the war on photography in public places. Again and again, we hear how overzealous law-enforcement people—and private security guards—have challenged people who are doing nothing more than taking pictures in public places. They claim to be preventing terrorism, but the evidence for this is at best thin. A number of websites have sprung up to catalog and protest infringements on our rights to take pictures and videos. One of the best is called, unsurprisingly, “War on Photography,” and it’s full of depressingly familiar tales of harassment by officious transit workers, police officers, and security guards, among others. The U.S. has nothing, in this regard, on the police-state tactics that become more obnoxious every year in the nation that gave us the Magna Carta: the United Kingdom. The horror stories there are enough to make you leave your camera home on a tourism visit, or, perhaps more wisely, visit a less paranoid nation. Security expert Bruce Schneier is among the many who point out the futility, not to mention almost pure inanity, of this kind of official behavior. He urges us all to stand up for our rights: Fear aside, there aren’t many legal restrictions on what you can photograph from a public place that’s already in public view. If you’re harassed, it’s almost certainly a law enforcement official, public or private, acting way beyond his authority. 138 Mediactive There’s nothing in any post-9/11 law that restricts your right to photograph. This is worth fighting. Search “photographer rights” on Google and download one of the several wallet documents that can help you if you get harassed; I found one for the UK, US, and Australia. Don’t cede your right to photograph in public. Don’t propagate the terrorist photographer story. Remind them that prohibiting photography was something we used to ridicule about the USSR. Eventually sanity will be restored, but it may take a while. Freedom of Information: Public Records One of the most important initiatives in recent decades has been the opening up of government records to public inspection. Although the U.S. federal government went into reverse on open records during the Bush administration, the trend at the federal and state level, and increasingly around the globe, is toward more openness and access. When you request government records, keep this in mind:
- You don’t need to give a reason for your request. It’s your business, not theirs, why you want to see public documents.
- You should be as specific as possible about what you want. Overly broad document or data requests don’t help you or your search.
- Be persistent. Officials may turn you down the first time (and in my experience as a journalist, they often did), just to see if you’re serious. You can find a wealth of online resources on open records laws, state and federal. One is the National Freedom of Information Coalition, which sees its role as protecting the people’s right to oversee their government. In early 2010, the coalition won a $2 million grant to launch a freedom of information fund to help litigate state and local denials of open-records requests by citizens. This underscored the difficult side of open-records laws: dealing with recalcitrant officials who don’t care what the law says. (I’m on the board of the First Amendment Coalition, a California-based nonprofit that litigates such requests.) Public documents these days include data from databases, not just paper documents. In Chapter 10 I’ll discuss some ways we can use that data to help create what is being called “Government 2.0.” Dan Gillmor 139 Shield Laws Apple isn’t just control-freakish with its hardware. It’s one of the most secretive companies in the world. In 2004, claiming trade secrets had been violated, Apple Inc. sued several internal “John Does”— employees who’d leaked product information to several websites—and demanded that the sites turn over details on where they had gotten the information. At the request of lawyers working for those sites (I was not paid), I declared in legal documents that in my expert opinion the sites were doing a form of journalism protected under California law. Several courts agreed, and the online journalists were not required to turn over the information. California is one of many states with shield laws for journalists and confidential sources. Importantly, in the Apple case, the courts understood that even if the websites weren’t doing traditional journalism, it was journalism nonetheless. As of this writing, we still don’t have a federal shield law, though one is making its way through Congress. But when and if it does pass, I hope it will protect journalism, in whatever form that takes—not the people we call journalists. Having said all this about shield laws, I want to stress again that anonymous sources make me queasy. You may someday need to shield someone from harmful exposure, but you will be exposing yourself to challenges from common-sense readers who ask why your source didn’t have the courage to speak on the record. Overreach by Prosecutors If you are honorable, you’re almost certainly free from the risk of what follows. But when the laws get twisted to take down someone everyone dislikes, that’s when we should all pay attention to our own freedoms. In particular, when public officials start talking about “protecting the children,” you may be hearing the standard code words for whacking civil liberties—and in the Internet age, core liberties such as free speech are in jeopardy. The ugly case of Lori Drew is one example. Drew’s daughter was involved in a conflict with Megan Meier, a teenage neighbor. Drew and several other people created a bogus MySpace account for a fictitious teenaged boy who wooed and then rejected Meier. Soon after, Meier committed suicide at her suburban St. Louis home. One thing is 140 Mediactive absolutely clear in this sordid case: Drew and her helpers in this sleazy scheme were heartless, and have been justly pilloried for their acts. But was this a prosecutable offence? Officials in Missouri had no cause for criminal action because no state law fit the case. But federal prosecutors hauled Drew off to Los Angeles, headquarters of MySpace, and tried her for violating a federal law, the Computer Fraud and Abuse Act (CFAA), which had been used in the past to go after hackers who’d plundered others’ computers for financial gain. Using a computer, prosecutors said, Drew had: [I]ntentionally accessed and caused to be accessed a computer used in interstate commerce, namely, the MySpace servers located in Los Angeles County, California, within the Central District of California, without authorization and in excess of authorized access, and, by means of interstate commerce obtained and caused to be obtained information from that computer to further tortious acts, namely intentional infliction of emotional distress on [Meier]. As the Citizen Media Law Project’s Matt Sanchez explained, Drew’s alleged crime was, boiled down to the actual law as opposed to the emotional element of the case, “nothing other than failing to submit ‘truthful and accurate’ registration information when creating a MySpace profile. She would have been no less liable for misstating her height.” Think about this. When using online registration systems, have you always, without exception, given utterly accurate information? A jury acquitted Drew on a felony charge but found her guilty on a less-serious misdemeanor violation of the CFAA. But the judge overturned even that; as he explained in his ruling, allowing Drew’s verdict to stand would have made everyone who’s ever violated a terms of service agreement, no matter how minor the violation, guilty of a crime as well. The prosecutor, Thomas P. O’Brien, didn’t care. As Wired News reported, he was proud of himself. Sure, he said, using the CFAA was “a risk,” but his office “will always take risks on behalf of children.” The larger risk was, in fact, to liberty. O’Brien’s willingness to twist a law to serve even a well-meaning end deserves contempt, not praise, because he’s supposed to know better. We are fortunate that the judge rescued the rest of us—not just the despicable Drew—from a prosecutor whose legal theories would have made criminals of just about everyone who has ever signed up for just about anything online. Dan Gillmor 141 Can the law handle a case like Drew’s? Or what about the September 2010 suicide of a Rutgers University student who jumped off the George Washington Bridge after a video of him and a male friend having sex was posted online? Two fellow students were charged with invasion of privacy. Harvard law professor John Palfrey—a friend and former colleague of mine when I was a Fellow at the Berkman Center, where he was executive director—advises caution. He wrote in the New York Times of the Rutgers case and a Massachusetts suicide also attributed to cyberbullying: In using the law to address this problem, we need first to examine whether the law is sufficient in this new hybrid online-offline environment to discourage this kind of behavior and whether we are acting in a just manner with respect to those who are harmed and those who do the harm. Second, we need to ask whether our law enforcement officials have the support they need to get the job done. Most states have a series of laws that address criminal harassment, whether it happens online or offline. These laws ordinarily permit both criminal enforcement by the state and civil lawsuits. One challenge associated with these laws is to not criminalize behavior that amounts to ordinary teenager-to-teenager nastiness while drawing a line well before the kinds of behavior that might lead to a teenager’s suicide. Again, anyone who is honorable isn’t going to do this kind of thing. Still, we need to be aware of so-called fixes to essentially moral problems—fixes that could make it harder for everyone to participate in our new collaborative environment. Norms and Customs Indeed, the cases I’ve described weren’t, in the end, only about law. They also had everything to do with the norms, or customs, we should consider as we work, play and collaborate in a digital mediasphere. In previous chapters we’ve considered how we should react to things we find online, especially derogatory and even hateful speech, and how we should behave ourselves in our speech. I want to give these issues extra emphasis here. It should go without saying that people shouldn’t use our new media tools for cruel purposes. Given that some will, what kinds of 142 Mediactive norms can we encourage so that the targets of cruelty can either respond or, better yet, learn to ignore the attacks? Telling our children to grow thicker skins is, of course, not going to get us very far, and we don’t want to create a generation of purely cynical adults. But social-media training needs to include the digital-age versions of cautions we’ve long suggested to children, such as the admonition not to get into a car with an adult who’s a stranger. Again, trust depends in large part on what we can verify, or what we’ve learned, though our own experience and the advice of others, to trust. Words Come Back My friend and Arizona State University colleague Tim McGuire says, “The fact is one stupid mistake when you are 19 today can kill your future.” That’s true—today, anyway, as we learn that what we do online can often be rediscovered years later. So when President Obama advised the Virginia student with political aspirations to watch what he posted on Facebook, he was being sensible, given the current climate.But if the president’s advice turns out to have long-term validity, we are in some trouble as a society. Young people make mistakes and do stupid things. (So do older people, of course. Meanwhile, my generation’s youthful stupidities are mostly lost in the mists of time, unpreserved on a hard disk somewhere in the digital cloud.) But I hope it doesn’t follow, as the president suggested, that posting “weird” things on the Web in blogs, social networks and the like should be an automatic turnoff or disqualification for a responsible job later in life. The notion of punishing someone decades later for what he or she said or did as a teenager or college student isn’t just wrong. It’s dangerous. We’re going to have to cut each other some slack. There’s no alternative. A journalism student of mine once asked if it was advisable to have a personal blog and, if so, to be outspoken on it. He’d apparently been warned that it could put a crimp in his future journalism career plans. I can’t say how others would react. I do know that if I were hiring someone today I’d want to know what (not if) he or she posted online, not to find disqualifying factors but to see if that person had interesting things to say. I’d take for granted that I might find some things that were risqué or inappropriate for my current world. I’d expect to find things Dan Gillmor 143 that would be “unjournalistic” in some ways, such as outspoken or foolish (or both) views on important people and issues. But I’d also remember my own ability, if not tendency, to be an idiot when I was that age. And I’d discount appropriately. This is all about giving people what my friend Esther Dyson, a technology investor and seer, has called a “statute of limitations on stupidity.” If our norms don’t bend so that we can all start cutting each other more slack in this increasingly transparent society, we’ll only promote drones—the least imaginative, dullest people—into positions of authority. Now that’s really scary. We’re making progress—probably more than Obama gives us credit for. Recall that it was impossible for a Catholic to be president until John F. Kennedy was elected. It was impossible for a divorced person to be elected until Ronald Reagan won. It was impossible for a former pot smoker to be president until Bill Clinton (who bizarrely claimed not to have inhaled) got elected. George W. Bush acknowledged having been a dissolute drunk until he was 40. And so on. Making These Judgments Is Neither Clear nor Simple Virginia Gov. Robert McDonnell took hits during his 2009 campaign for the office when a 20-year-old master’s thesis came to light. In that document he denounced programs that encouraged women to work outside the home and said working women were bad for families. He wanted voters to ignore all this and concentrate on what he said were his current positions. McDonnell deserved some slack, too, but he wrote the thesis when he was in his mid-30s, not his early 20s or adolescence. His record as a legislator since then has been extremely conservative, as well. What he said two decades ago is obviously more relevant, given the circumstances, than what a student posts on a high-school Facebook page today. Still, he won the election. Sometime in the foreseeable future, we’ll elect a president who had a blog or Facebook wall or MySpace page when she was a teenager or a college student. By the standards of today, such a person would be utterly disqualified for any serious political job. But if we adapt as I believe we’ll have to, we’ll have grown as a society; we’ll have become not just more tolerant of flaws, but more understanding that we all have feet of clay in some respect. We’ll elect her anyway, because we’ll realize that the person she has become—and how that happened—is what counts. 144 Mediactive How will her peers know all this? They’ll have figured it out for themselves, but they’ll have had some help, too. They’ll have been taught, from an early age. In the next chapter, we’ll see who the teachers should be.