Tumblelog by Soup.io
Newer posts are loading.
You are at the newest post.
Click here to check if anything new just came in.

August 07 2012

12:40

July 31 2012

18:03

By tweeting about a developing story, could you be inciting a riot?

You’re probably not going to like this, but we’re facing bigger Twitter problems than @GuyAdams having his account suspended.

For those who haven’t been among the outraged on Twitter: Guy Adams, a Los Angeles-based reporter for The Independent, tweeted up a storm of criticisms about NBC’s handling of the Olympics. One of those tweets included NBC Olympics president Gary Zenkel’s work email address. Twitter suspended his account for allegedly violating its user policy. The Internet went bananas.

What’s making people so berzerk about all this is the idea that Twitter and a corporate partner — one that works in the news business, no less! — appear to have teamed up to silence a guy who said things those companies didn’t like. (Breaking: Adams apparently has his account back.)

In reporting on something through social media, your action might be seen as calling for that thing to happen.

But here’s a scarier thought: What if it were up to the government to choose what kind of Twitter speech is allowed? What if instead of account suspensions, Twitter users had to worry about being arrested for what they tweet?

That’s a question that Yale Law School lecturer Margot Kaminski has been thinking about a lot these days. The premise of her recent research is that as people increasingly use social media as a tool for community organizing, government will try to impose regulations.

Kaminski has delved specifically into “incitement to riot” statutes in the United States. These are the laws that add the “but” to that freedom-of-assembly bit in the First Amendment, and they vary in key ways from state to state. (How many people have to assemble for it to be considered a riot? What kind of activity constitutes a riot? What’s the difference between someone who’s acting violently, or just threatening violence? And what about intent? Etc., etc., etc.)

Here’s a hypothetical: Let’s say I take to Twitter, and tweet that everyone in Cambridge should meet at the Out of Town News stand and start moonwalking at noon. Harmless flash mob, right?

But what if instead I tweet that everyone should meet there for a looting spree? Am I inciting a riot? (For the record, I am decidedly pro-moonwalking and anti-looting.) Kaminski argues in her paper, “Incitement to Riot in the Age of Flash Mobs,” that “there is no real need to go after the speaker for a crime of ‘incitement to robbery’ or ‘incitement to riot,’ because the speaker’s involvement in the robbery could be punished through other means.”

A thornier question: What if I’m a reporter or some other passerby who tweets about a crowd that’s gathering at the newsstand, and my tweet notifies others who then turn up?

“If somebody tweets there’s a protest happening at XYZ location, there’s a possibility that that might be seen as incitement to riot,” Kaminski told me. “So the thing that might be harmful to journalists is in reporting on something through social media: Your action might be seen as calling for that thing to happen.

This isn’t just an academic thought exercise. Last year, Cleveland’s city council passed ordinance to prohibit “the improper use of social media to induce persons to commit a criminal offense.” Mayor Frank Jackson vetoed the measure. But in December, the council adopted a revised version of the original ordinance, making it clear that “electronic media devices” can be considered criminal tools.

Kaminski says the Supreme Court has never addressed whether there should be a distinction between “direct and indirect advocacy of unlawful action.” The other thing to remember is that states define riots differently. Get the image of a torch-and-pitchfork-toting mob out of your mind: Only two states require at least seven people for a gathering to be a possible riot. Four states require only two people to gather for their assembly to be considered a possible riot. For most states, the minimum is three people.

Many states already criminalize incitement to riot, and plenty of them in ways that Kaminski says are overly broad, even unconstitutional. She calls these statutes fascinating because they implicate not one but two protected freedoms: speech and assembly. In the landmark 1969 Supreme Court case Brandenburg v. Ohio, justices unanimously ruled that the government may not punish speech unless it incites violent action. They drew a line between speech that advocated for violence versus speech that actually incited it. Traditionally, it was up to authorities — often in the midst of a crowd — to determine whether someone was inciting a riot.

“Now there’s a particular fear of social media,” Kaminski said. “I use Twitter as the example because of the fact that cops are afraid that it creates instantaneous reaction. Before, the call to gather would have occurred by some kind of telephone chain, passing out pamphlets or putting up posters. Brandenberg put up this idea that the harm has to be immediate before you can legitimately go after it. It really meant you’re watching the speaker give the speech, and you’re seeing how soon bad stuff is going to occur.”

In an age of virtual assembly, authorities are trying to figure out how to navigate incitement in a non-physical space. One high-profile example from last summer: When police in Britain threatened to bring charges against people for using Twitter and BlackBerry Messenger to incite widespread London riots.

“Twitter brings this immediacy question back into play again,” Kaminski said. “You can have 100,000 followers and send out a message, and have something occur in 20 minutes. There’s a lot of potential for ex post facto justification. The chance that you, with 100,000 followers, put out this message and something really bad happens? Well, you might put out 50 messages with nothing happen and one thing occurs and post-legislators are going to try to apply this to social media. The core of this is making this really clear how much of a high level of intent you have. You have to be able to show that the speaker on Twitter wanted the gathering to occur, wanted it to be large, wanted it to happen immediately, and wanted to frustrate police ability to control it.”

Image derived from photo by Dave Hogg and illustration by Matt Hamm used under a Creative Commons license.

August 28 2011

17:46

Accounts of Chinese bloggers on Weibo suspended, causing protests

New York Times :: China’s most vibrant equivalent of Twitter notified each of its 200 million users Friday that several bloggers deemed to have spread unfounded rumors would have their accounts suspended for one month. In messages, the operators of Sina.com’s Weibo microblog detailed the suspensions of the bloggers. The announcements provoked a torrent of online protest, some of which was directed at the government on the assumption that it was behind the punishments.

Continue to read Michael Wines | Sharon LaFraniere, www.nytimes.com

June 13 2011

19:09

Anonymous - Turkey detains 32 over online attacks against tib.gov.tr and sgk.gov.tr

Financial Times :: Turkish authorities have detained 32 people they believe to be involved in online attacks by Anonymous, the cyberactivist group. The raids in Turkey follow three detentions last week in Spain of individuals believed to be involved in a spate of attacks on Sony. Anonymous supporters responded to the arrests by knocking out the Spanish police’s website for a few hours over the weekend.

Details, background information - continue to read Tim Bradshaw | Delphine Strauss, www.ft.com

May 27 2011

14:30

This Week in Review: Confounding censors with Twitter, and space for big and small media on the iPad

Every Friday, Mark Coddington sums up the week’s top stories about the future of news.

Censorship, the law, and Twitter: If we hadn’t already learned how social media are opening the traditional media’s gatekeeping role to the masses, we got a pretty good object lesson this week in Britain. Here’s what happened: To keep the British tabloids from digging into an alleged affair with a reality TV star, Manchester United soccer star Ryan Giggs took out a British court provision called a super-injunction that prohibits media from identifying him and reporting on both the story and the very fact that a super-injunction exists.

But the super-injunction was no match for Facebook, Twitter, and soccer forums, where thousands of people talked about Giggs and the affair in spite of (and because of) the order. Since then, a Scottish newspaper and a member of Parliament have both named Giggs, rendering the super-injunction essentially ineffective and causing quite a bit of handwringing over whether gag orders are a lost cause in the Twitter age, and whether or not that’s a good thing.

Giggs sued Twitter for the breach, and some members of Parliament started looking for ways to control the site. Prime Minister David Cameron said Twitter made Britain’s injunctions “unfair” and “unsustainable” for traditional media and urged Parliament to change them. Some people, including World Wide Web creator Tim Berners-Lee and the Guardian’s Richard Hillgrove, said the problem lies with Twitter, not the law, with Hillgrove (rather absurdly) suggesting a delay mechanism to monitor posts before they go up: “Twitter and Facebook are not blank sheets of paper. They are media publishers like any other.”

Others faulted the law instead: At the Guardian, Dan Gillmor said it allows the wealthy to play by different rules, and the Telegraph’s Harry Mount said that thanks to the web, “a form of people power has been effectively absorbed into that new body of privacy law.” The Vancouver Sun’s Mario Canseco documented the failure of gag orders in the Internet age in Canada, and Mathew Ingram of GigaOM advised courts and governments to quit trying to enforce antiquated laws, saying they “may not like the implications of a totally distributed real-time information network, but they are going to have to start living with it sooner rather than later.”

Then, of course, there’s the question of whether the anonymous online super-injunction violators have any legal repercussions to worry about. As the New York Times noted, Twitter has been resistant to turning over its users’ identities in the past, though a Twitter official said this week it will hand over user info to the authorities if it’s legally required to. But even with Twitter’s compliance, there would still be hurdles to clear in identifying users, the Telegraph explained.

iPad channels for big and small media: Several big-media publications neared or hit iPad milestones this week: On stage at the TechCrunch Disrupt conference, The Daily’s Greg Clayman said it’s nearing a million downloads since it was launched in January. Clayman wouldn’t say how many paid subscribers the News Corp. iPad-only publication has (a far more interesting figure in determining The Daily’s viability), but Adweek’s Lucia Moses said The Daily will announce its number of paid downloads — it only started charging in March — once it hits a “target level.”

Meanwhile, Wired and GQ were made available for in-app subscriptions through Apple App Store this week, after their owner, Condé Nast, became one of the first major publishers to strike a deal with Apple for in-app subscriptions earlier this month. Another major publication, Playboy, launched an iPad subscription outside the App Store, because it obviously has some difficulty complying with Apple’s “no nudity” policy.

Playboy’s app is essentially an iPad-optimized website, which might seem like a tempting option for publishers who don’t want to deal with Apple’s restrictions, but as Mashable and GigaOM explained, Playboy might be uniquely positioned to pull this off where others can’t. GigaOM’s Mathew Ingram looked at those cases and weighed the pluses and minuses for publishers of getting into bed with Apple.

Of course, big publishers aren’t the only ones getting into the iPad game: At paidContent, Ashley Norris, CEO of a small publishing company that just released an iPad app, argued that indie publishers could play a key role in developing the tablet magazine. Flipboard is a pretty ideal model for those publishers: It’s valued at $200 million, and SiliconAngle’s Tom Foremski said it exemplifies the current en vogue tech-bubble business plan: “find free content and organize it into a useful interface.” That niche might not play as big of a part in the iPad market as we think, though: As Poynter’s Jeff Sonderman noted via ReadWriteWeb, news apps make up only 3% of all the apps in the App Store.

Driving more traffic from Facebook: Facebook has been working hard lately to cozy up to news organizations, and this week it provided some statistics that may have some of those organizations looking more closely at integrating Facebook into their sites. According to stats Search Engine Land got from Facebook (so grain of salt, etc.), the average media site integrated with Facebook has gotten a 300% jump in Facebook referral traffic, and ABC News, the Washington Post, and the Huffington Post have all reportedly doubled their traffic from Facebook since adding social plugins. Meanwhile, Fortune’s Peter Lauria talked to Facebook’s Vadim Lavrusik about the possibility of news orgs charging on Facebook using Facebook credits, like some Facebook games do now.

As it’s been known to do, Facebook played a big role in the aftermath of another natural disaster this week when a tornado hit Joplin, Missouri. The local newspaper, the Joplin Globe, told Poynter about how they set up a Facebook page to help people find family and friends in the tornado’s wake, and KOMU’s Jen Lee Reeves wrote about her station’s Facebook efforts at PBS MediaShift.

Elsewhere in social media and news, the New York Times experimented this week with a human-powered Twitter feed, as opposed to its usual mostly automatically driven style. The Times’ Liz Heron (and a couple of other newspaper social media editors) talked to Poynter’s Jeff Sonderman about their Twitter strategies, and Jessica Roy of 10,000 Words looked at how the experiment changed the Times’ Twitter feed. Heron also revealed the Times’ informal social media guidelines at the BBC’s Social Media Summit: “Use common sense and don’t be stupid.”

Reading roundup: Not a lot of big future-of-news stories this week, a several smaller things worth keeping an eye on:

— Google notified publishers late last week that it’s abandoning its project to scan and archive hundreds of years of old newspapers. The Atlantic’s Adam Clark Estes lamented the decision, and Paul Balcerak urged newspapers to pick up where Google left off.

— This week’s AOL/Huffington Post bits and pieces: Huffington Post Canada has been launched, AOL’s Daily Finance has been made over, and some HuffPo staff are reportedly leaving because they’re upset with how the AOL/HuffPo marriage has gone so far. Meanwhile, even though AOL’s content is free, CEO Tim Armstrong expressed his general belief in paid content online.

— Ben Huh of the Cheezburger network of comedy sites announced he’s working on what he’s calling the Moby Dick Project — an effort to reform the way news is presented and consumed online. ReadWriteWeb gave more details of the type of software he’s developing.

— A couple of addenda to last week’s linking discussion: Former Wall Street Journal columnist Jason Fry wrote about solving the workflow issue at newspapers, and at the Guardian, Dan Gillmor called out lazy linking — linking to a summary, rather than the original piece — in online aggregation.

— CUNY j-prof Jeff Jarvis made a case for news as conversation and the value of comments, and at 10,000 Words, Alex Schmidt wrote about the way poisonous online comments can affect reporters.

— Finally, Canadian media consultant Ken Goldstein issued a paper looking at decline circulation of newspapers in Canada, the U.S., and the U.K. He included a possibly remarkably prescient 1964 quotation by media theorist Marshall McLuhan: “The classified ads (and stock-market quotations) are the bedrock of the press. Should an alternative source of easy access to such diverse daily information be found, the press will fold.”

January 27 2011

18:00

Citizen Media Brings Opposing Political Views to the Maghreb

The Maghreb is generally a term used to refer to five countries in North Africa: Algeria, Libya, Mauritania, Morocco, and Tunisia. This article explores the current state of the media in the region, and marks the effect that a burgeoning citizen media sphere is having on democracy. It is based on a contribution by the author, Algerian journalist Laid Zaghlami to the book "Citizen Journalism & Democracy in Africa," an exploratory study undertaken by the School of Journalism and Media Studies at Rhodes University, South Africa, in July 2010. Download a PDF of the publication here.

The current political systems in the Maghreb countries are not eager to promote freedom of the press. On the contrary, they are acting to prevent the emergence of a real pluralistic media landscape and the birth of independent and active civil society.

In Morocco, the ascension of King Mohamed VI in 1999 brought high hopes for freedom and liberty. They have been dashed, however, by 10 years of banned newspapers and jailed journalists -- all because they dared to publish "sensitive" news about the king's health or his family members.

Media policy changes in Morocco are only cosmetic and tend to promote the king's image; journalists and bloggers alike are often subject to authorities' control and surveillance over their articles and comments.

In Tunisia -- where a new interim government is in power after the recent ouster of dictator Zine el-Abidine Ben Ali -- several international bodies and non-governmental organizations have openly criticized the government because of the worsening situation of press freedom and human rights.

Human rights activists, political opponents, lawyers and journalists are often harassed and even imprisoned. Also many bloggers face prison charges because of their critical reports on the Internet. (Next week MediaShift will have a more detailed report about the situation in Tunisia.)

Algeria appears to have a relatively free press, compared with its neighbors. Privately owned press accounts for a dominant and prominent position in the media market, comprising 74 newspapers out of a total of 80 titles. However, economic sanctions and fines may apply in the event of acts of defamation and libel.

Algerians also seem to enjoy unrestricted Internet access, in as much as there is no legislation to supervise or monitor Internet sites. However, authorities are enacting laws to address what they refer to as "communication crimes."

An Emerging Blogosphere

Illiteracy is an important factor that affects the educational and cultural participation of citizens in Maghreb countries, and therefore online media participation. In statistical terms, illiteracy affects 23 percent of Algeria's 35 million inhabitants, 32 percent of 9 million inhabitants in Tunisia, and in Morocco 40 percent of a population of 36 million.

Citizen journalism in the Maghreb region -- and in Algeria in particular -- still has a long way to come before providing a real alternative to conventional media. But it is clear that new technologies have enabled journalists and normal citizens alike to become multi-skilled media producers.

In Tunisia, for example, bloggers have set up a collective blog called Tunisian Witness, which aims to reach Tunisian citizens worldwide, particularly those interested in developing independent national media. These bloggers consider themselves to be active citizen journalists, contributing to the idea of citizenship with news, ideas and comments, as well as actively participating in forums and debates on issues related to Tunisia.

Perceptions of Citizen Journalism

One key issue is that the concept of citizen journalism is ill defined among the population of these three Maghreb countries. Some consider it just to be the online press.

Screen shot 2011-01-25 at 9.45.58 PM.pngMost newspapers have their own electronic editions on the Internet, although only few titles are exclusively available online. The latter include Algeria-based Echorouk Online and Tout sur l'Algerie [Everything about Algeria], which operates in compliance with the requirements of its French owner CNIL.

Others recognize blogs as a key part of the citizen journalism movement, representing online spaces for political opposition and a means to promote freedom of expression and the press.

There have been moves to build up common spaces on the Internet for new forms of expression, especially in the sphere of political blogging and particularly in Algeria.

The website agirpouralglerie.com [Act for Algeria], for example, was initiated by Hichem Aboud, a former Algerian security officer living in France. Also key to the political blogosphere is haddar-blog.com, which is authored by an active political opponent, Yazid Haddar.

There are citizen media websites and blogs that are not politically focused. Algerie Decouverte [Algeria Discovered] is a travel blog exploring the country's history, nature and geography; Kherdja is a blog dedicated to outings, food and shopping.

A timid debut of professional local citizen journalism is also taking place in the Maghreb. One good example is the electronic newspaper Algérie Focus [Algeria Focus]. Based in France, it's produced by a team of professional journalists, scholars and experts. It aims to promote freedom of expression and a diversity of opinions.

fay.jpgIts chief editor, Faycal Anseur has launched parallel citizen spaces with the support of social network applications including Facebook, LinkedIn, MySpace, Orkut, Flickr, Bebo, Hi5, YouTube, Basecamp, Viadeo, and Webwag. Nevertheless, citizen journalism in the Maghreb seems to have a long way to go before it can be widely grasped and comprehended.

Anseur's concept of citizen journalism developed from a desire to elevate free and unfettered communication as a platform for generating fresh understandings about justice, politics, economics, democracy and more.

Resenting the ethical strictness and political correctness of existing Maghreb public media, his immediate aim is to secure more spaces on the Internet for free expression of opinions without restrictions or censorship.

There are basic communication gaps between within members of the same society across the Maghreb, thanks to a variety of economic, social and cultural barriers: Generational, educational, financial and gender differences.

It is too early to confirm how a project like Algérie Focus will fit into the conventional journalism model in the country. What is evident however, is how traditional media in the Maghreb has disappointed citizens.

Convential Media Joins In

Conventional public and private media in the Maghreb appear to underestimate or ignore the concept of citizen journalism. Their typical response has been simply to have online editions of their publications.

As such, they exhibit a highly institutionalized approach to citizen journalism, tending to think of their newspapers as spaces for all citizens' contributions and suggestions.

Besides having a network of regional and local correspondents, some newspapers provide hotlines to their readers for comments and reports on different issues. Traditional media assume there is no need to develop new specific citizen journalism projects that would provide an alternative to conventional channels.

Only a newspaper called Le Citoyen [The Citizen] is dedicated to reporting on regional news by placing citizens at the core, and it is privately owned.

The practice of citizen journalism requires a political system that is basically founded on core democratic values, including media and political pluralism. These key tenets were in fact instilled in the Maghreb at a conference on citizen journalism in the Arab world, held in Casablanca, Morocco in 2008.

The media is an important part of the democratic process in the region; journalists themselves are actors or agents of democracy. Those working in the region's private press should today be proud of their achievements in securing communicative spaces for public opinion.

Conventional media, and especially the private press, still has an important role to play in promoting and safeguarding democracy in the Maghreb. However, it must open up to provide the kind of forums in which journalists, scholars, political opponents and ordinary citizens alike can intervene in public affairs.

Laid Zaghlami has been a journalist, reporter and specialized chief editor in Algerian broadcasting since 1982. Most recently he has contributed to the book "Citizen Journalism & Democracy in Africa," an exploratory study by the School of Journalism and Media Studies at Rhodes University, South Africa, available online at www.highwayafrica.com.

ejc-logo small.jpg

This story was originally published by the European Journalism Centre, an independent non-profit institute dedicated to the highest standards in journalism, primarily through the further training of journalists and media professionals. Follow @ejcnet for Twitter updates, join us on Facebook and on the EJC Online Journalism Community.

This is a summary. Visit our site for the full post ».

December 26 2010

23:30

Online Censorship Grows in 2010, Showing Power of Netizens

birds 2010 small.jpg

Despite some good PR for online freedom this year, online censorship grew and became more subtle in 2010. Online propaganda remains strong within countries like China and Iran, where media censorship is everywhere and the governments have mastered online censorship tools. These countries are as efficient as hacktivists when it comes to controlling information.

China and Vietnam remain among the most repressive countries, with 77 and 16 netizens in jail, respectively (read our recent report on Vietnam here). Thailand is unmerciful when it comes to lese-majeste laws (also read our recent report about how this law is being abused). And a new player, Venezuela, is on the verge of adopting a bill that will introduce Internet filtering and a range of penalties for online media for vaguely worded offenses.

Democracies such as France are also taking further steps to implement a legal framework for online filtering. The French government is working on an ineffective and dangerous online filtering system that could jeopardize the work of journalists and bloggers in the name of fighting child pornography.

Overall, netizens continue to be victims of threats and unfair trials and arrests. In just one example, a 28-year-old Egyptian human rights activist was beaten to death by police in Alexandria on June 6.

But along with the setbacks, 2010 saw a few high profile cases that hinted at an improving state of affairs for online freedom. The positive developments include Egyptian blogger Kareem Amer being set free in November after completing a four-year jail sentence, Turkey ending its two-and-a-half-year ban on YouTube in the spring 2010, and Turkmenistan, which has been called the "European North Korea," began to slowly open up to the Internet.

As of today, 112 netizens are in jail. This is an improvement over the 151 that were arrested in 2009. So does that mean things are getting better?

Netizens and the Public Interest

taintedmilk.jpg

Despite the strengthening of online propaganda and the growing expertise being developed by what we at Reporters Without Borders call the Enemies of the Internet, netizens keep finding ways to practice online freedom of expression even in the most repressive countries. In 2010 netizens proved the essential role they play in repressive societies. In China and Russia, netizens denounced corruption by local authorities and made important information available to their fellow citizens.

Overall, the environment, corruption, health care and politics remain the main topics focused on by the netizens defended by Reporters Without Borders. For example, in China, the activist Zhao Lianhai created a website to detail the effect that contaminated milk powder sold from Chinese company Sanluon had on young children. An estimated 300,000 children in China were made ill, 50,000 were hospitalized and at least six newborn babies died as result of consuming the milk powder. One of Lianhai's children was made ill by the milk powder, and he used the website to urge parents to bring a class action suit against those responsible. In the end, Lianhai was sentenced to two-and-a-half years in prison for "inciting social unrest."

Netizens and the Law

armed_forces_egypt_fb-2.jpg

Because the Internet is still a vague legal notion in many of the countries, it has always been easy for repressive regimes to convict netizens on vague charges. As an example, netizens belonging to minorities can be accused of "separatism," and using the Internet and social media can be considered activities aimed at overthrowing the government.

2010 was no stranger to legal absurdity. In Azerbaijan, two well-known bloggers Adnan Hajizade and Emin Mili were released after spending more than a year in jail for "hooliganism." This was because they went to the police to report after they were assaulted in a restaurant by two men. In Egypt, blogger Ahmed Hassan Basiouny will be tried by court martial for creating a Facebook page that offered advice and information to young people thinking of enlisting in the Egyptian army.

Internet Companies: Accomplices?

When Google decided to withdraw its email services from China after being a victim of cyberattacks, the issue of corporate responsibility gained worldwide attention. Later in the year, Research In Motion (RIM), the Canadian manufacturer of the BlackBerry smartphone, was involved in a situation that showed we cannot expect technology companies to respect human rights. The company has been under intense pressure from several governments to allow access to encrypted BlackBerry communications, among other requests. The nature of the agreements made between RIM and these governments remains unclear due to conflicting statements from the parties. Reporters Without Borders has called for more transparency so that users know exactly what's going on.

Compared with the past decade, authorities and governments have never put as much energy into attempts to control online content. But this is good news. It illustrates that online free speech is spreading and netizens are winning. The battle is not lost in advance, but it is still far from being lost.

Photo of tainted milk event by jiruan via Flickr

Note that on December 30 Reporters Without Borders will publish its annual round up for 2010, which presents the number of bloggers attacked, arrested and jailed, as well as the number of countries who practice a form of Internet censorship.

Clothilde Le Coz has been working for Reporters Without Borders in Paris since 2007. She is now the Washington director for this organization, helping to promote press freedom and free speech around the world. In Paris, she was in charge of the Internet Freedom desk and worked especially on China, Iran, Egypt and Thailand. During the time she spent in Paris, she was also updating the "Handbook for Bloggers and Cyberdissidents," published in 2005. Her role is now to get the message out for readers and politicians to be aware of the constant threat journalists are submitted to in many countries.

This is a summary. Visit our site for the full post ».

December 23 2010

17:16

Special Series: Year in Review 2010

It's holiday time, and that means travel mania, less work and yes, year-end roundups. Yes, they are the lazy way to finish out the year for journalists and bloggers around the world, the ultimate in traffic catnip. But we thought we could take a different approach, doing year-end roundups for each niche we cover at MediaShift, giving our correspondents the space to talk about important trends that happened in 2010, and pointing us toward what we might expect in 2011. And in one case, for the Top 10 MediaShifting moments, we even collaborated with our audience using iEtherPad. Happy reading, and happy holidays!

All the Year-End Posts

> The Social Network, Streaming Boom Dominate Film in 2010 by Nick Mendoza

Coming soon

Top 10 MediaShifting Moments by Mark Glaser

The year in magazines by Susan Currie Sivek

The year in online free speech by Clothilde Le Coz

The year in important legal issues by Jonathan Peters

The year in e-books and self-publishing (and some predictions) by Carla King

The year in digital music by Jason Feinberg

*****

What do you think about our series? Did we miss anything? What were your top media moments of 2010 and where do you see things heading in 2011.

Mark Glaser is executive editor of MediaShift and Idea Lab. He also writes the bi-weekly OPA Intelligence Report email newsletter for the Online Publishers Association. He lives in San Francisco with his son Julian. You can follow him on Twitter @mediatwit.

This is a summary. Visit our site for the full post ».

December 21 2010

17:05

Vietnam Pushes Facebook Clone to Control Online Speech

news21 small.jpg

Social Media content on MediaShift is sponsored by the John S. Knight Journalism Fellowships, a program offering innovative and entrepreneurial journalists the resources of Stanford University and Silicon Valley. Learn more here.

HANOI, VIETNAM - Inside one of Hanoi's more than 3,000 online gaming houses, gamers clad in coats and scarves pass the hours shooting at each other on their screens, oblivious to the wintry gray and 10 celsius evening outside. This is southeast Asia, but the French colonial architecture and the proliferation of tourist-market socialist kitsch -- all covered by a wet blanket autumn gloom -- give the place a slightly European feel.

With the Vietnamese economy growing at an average of seven percent per year over the past decade, and companies such as Microsoft and Intel announcing major investments, there is a limit to how European the ambiance is. There's no downturn or recession here. Although average per capita incomes are little over $1,100 per year, Vietnam is moving up the international economic ranks.

hanoi.jpg

The growth of online technology and Internet usage in the country is a signal that change is taking place. According to the government, about 25 percent of Vietnam's nearly 90 million people use the Internet. By comparison, I found it extremely difficult to find cafés or bars with WiFi access when walking around Rome last April. In a stretch from the Colosseum to St.Peter's Basilica, the well-worn tourist and pilgrim hub of the Eternal City, I counted five places with WiFi. Yet in downtown Hanoi, almost every decent-sized hotel or eatery has fast and free WiFi. It is a flip of a coin as to which place has the better food, however.

Facebooking Vietnam

Back inside the gaming house, I asked the manager (who requested his name not be published) how to access Facebook. I saw that a few of the gamers take a break from shooting down Japanese World War II soldiers in order to log in to the social networking site. Facebook is blocked in Vietnam, though no official explanation has been offered by the authorities as to why. Nonetheless, the gamers on downtime were doing any of a number of things that apparently all Facebookers do, such as paying undue attention to pictures of cute young women among their contacts, or posting insulting remarks on their friend's pages.

The manager's answer came with with an air of incredulity, and a good measure of self-satisfaction. "We just change the DNS," he said.

The likely reason for the blocking of Facebook is the upcoming Five Year Congress of the ruling Communist Party. A one-party state, the Vietnamese government harbors no dissent, and over the past two months, 20 activists, lawyers, bloggers and religious minority figures have been arrested or jailed for various forms of alleged sedition or threats to national security. Some were denied access to legal representation at what looked like little more than show trials. Human rights groups and overseas Vietnamese say the government is trying to shut up any and all opposing voices in advance of the Congress, when a new leadership could emerge.

Removing Facebook from the equation could be a help to the government's agenda. Blogging has become increasingly popular in Vietnam, and one cause celebre has been a controversial bauxite mine in the country's Central Highlands. Writers criticizing the government's policy have been arrested, while others remain under surveillance. The government has tried, unsuccessfully, to close down one vocal website featuring blog posts flaying the authorities for allegedly kowtowing to China over the project, while anonymous cyber-vandals launched distributed denial-of-service (DDOS) hack attacks on some of the critical blogs and websites.

Mainstream media in Vietnam is affiliated with the government or the ruling Communist Party, and state censors control what can and cannot be said. So online content offers a new, more nimble and fast-paced challenge to the authorities.

Government-Run Facebook Clone

Screen shot 2010-12-20 at 2.50.40 PM.png

In trying to take on Facebook, the government has launched its own social networking website, which is said to be the country's biggest-ever IT project. Users have to register with their official ID details, meaning that the government can monitor content and activity on the site.

Vietnam currently has 1.8 million Facebook users and the number of account holders has doubled in the past six months. In absolute and relative numbers, Vietnam is well back in the southeast Asian social networking league. Indonesia has the world's second-biggest Facebook user base after the U.S, with over 32 million users, while almost 20 percent of the citizens in the Philippines are on Facebook. That said, Vietnamese seem to be taking to the social networking giant, meaning that the government faces a challenge to get people away from Facebook and onto go.vn.

I asked the gaming room manager what he thought of go.vn. Nose and brow furrowed, he asked, "What is that?" I asked around the shop, and all but two of the nineteen gamers said much the same.

Big brother might have to work hard to make new friends here.

Photo of traffic in Hanoi by Simon Roughneen

Simon Roughneen is an Irish journalist currently in southeast Asia. He writes for Financial Times, Los Angeles Times, Asia Times, The Irrawaddy, ISN, South China Morning Post and others. He is a radio correspondent affiliated to Global Radio News and has reported for RTÉ, BBC, CBS, CBC Canada, Fox News, and Voice of America. He has worked in and reported from over 30 countries.

news21 small.jpg

Social Media content on MediaShift is sponsored by the John S. Knight Journalism Fellowships, a program offering innovative and entrepreneurial journalists the resources of Stanford University and Silicon Valley. Learn more here.

This is a summary. Visit our site for the full post ».

December 14 2010

20:30

Brussels Leaks Tries to Build on WikiLeaks Idea in EU

A new site, Brussels Leaks, modeled after WikiLeaks, launched out of the blue last Thursday to much excitement in the European capital and the Twittersphere. This follows the announcement of OpenLeaks, a spin-off from WikiLeaks from former workers there. But Brussels Leaks doesn't plan to run the documents that are leaked to it, but rather rely on the media to distribute the best material.

"We will mainly look at act as an intermediary, passing information to responsible parties," says a note on the Brussels Leaks site. "We think we are in a good position to do this because we live, work and to a certain extent breathe Brussels. And trust us, Brussels has both poor air quality and transparency."

I recently conducted an exclusive email interview with an anonymous representative of Brussels Leaks. This exchange is among the first media interviews granted by the fledgling European whistleblower organization.

Q&A

Why did you feel the need to set up a Brussels/EU focused WikiLeaks-type site? What do you want to achieve?

Brussels Leaks: We have all worked in Brussels for a while and have constantly seen, or heard about, documents floating around which 'would be great if they could get out in the open.' People didn't know how to do this most of the time. In our day jobs we did this, using our networks and contacts, but there were a lot of limits. Having personal connections with 'people in the know' means their jobs could be on the line if we revealed the information.

Brussels is a powerful place full of over 15,000 lobbyists who all impact big, international decisions. It's naïve to think things do not happen behind closed doors (such as European Commission President Jose Barroso attending a plastics lobby dinner -- weird?).

This isn't really for media as much as to help society, and perhaps namely civil society, get their hands on the right information to make their jobs easier.

What do you plan to focus on?

Brussels Leaks: Obviously it's EU focused which is as broad as you can get. At the moment we'll try the best with what we get, but obviously anything social or environmental takes priority. We'll see.

Can you give us a clue as to what leaks, if any, you have in the pipeline?

Brussels Leaks: Transport and energy.

What kind of people leak information on the EU to you? What are their motives?

Brussels Leaks: We meet people all the time working for EU institutions, lobby and industry groups and even NGOs who want to get information out there. They're often good people who see something they know is wrong, and want to get it known whilst keeping hold of their jobs.

Do you have any direct connections/contact with WikiLeaks? Have they or similar whistleblowing/hacker organizations been in contact with you, or given you advice or assistance?

Brussels Leaks: No, not yet but we are very open to advice and assistance.

What has been the response so far to Brussels Leaks from the institutions/organizations you plan to 'leak' information about?

Brussels Leaks: Very quiet publicly but we have heard they have at least half an eye on us.

How do your security and technical capabilities match up to the organizations who may try to stop you?

Brussels Leaks: At the moment, it's hard to tell. We're not really anticipating in the short-term anything which would put us under the kind of pressure WikiLeaks witnessed, as many of the leaks we have so far are quite low key. This is Brussels after all. Of course we want to build, improve and develop over time -- we have a plan and we won't overstep our capacities.

Is there anything you would not publish?

Brussels Leaks: We are a small group of people who will try to work to a moral code. We're not interested in gossip or slander. We are doing this because we want to get important information out in the open, but if it looks to endanger somebody, i.e. lives or jobs, then we will not. We also have high level media contacts outside of this who we can refer leaks onto. We're not here to get publicity, just to get the information out there.

Are any of you journalists?

Brussels Leaks: Yes, all are either journalists or worked in communications capacities in Brussels.

What is your code of ethics?

Brussels Leaks: Obviously as we are staying anonymous we need to build credibility and a reputation. We will always be truthful, accurate, and fair and want to hold everything up to public accountability.

What can people do to get involved with Brussels Leaks?

Brussels Leaks: We particularly need technical help, which is always appreciated. Otherwise, we'd just want people to be patient with us. We're probably not going to bring down EU global diplomacy or anything like that, so we just need time.

Emma Brewin is a writer, online/multimedia editor and social media manager currently based in Europe. Her areas of interest include media and journalism, Central and Eastern Europe, and alternative and sustainable travel and living.

ejc-logo small.jpg

This story was originally published by the European Journalism Centre, an independent non-profit institute dedicated to the highest standards in journalism, primarily through the further training of journalists and media professionals. Follow @ejcnet for Twitter updates, join us on Facebook and on the EJC Online Journalism Community.

This is a summary. Visit our site for the full post ».

December 10 2010

17:32

Online Freedom of Expression Under Siege in Thailand

BANGKOK, THAILAND -- "Today I have to go all the way to Khon Kaen to report to the police," said Chiranuch Premchaipoen, the editor of Thailand's well-known online news site Prachatai during a recent conversation in Bangkok.

The town is 450 km from Bangkok, and Chiranuch has to travel there once a month just to check in with police. This arrangement is the result of her detention at the Bangkok airport on September 24. That came in response to a complaint made about comments posted by a third party on the Prachatai web-board. (Irony of ironies, Chiranuch was returning home from attending an Internet freedom seminar in Geneva.)

She was charged with lese-majeste, or insulting the monarchy, which under Thailand's legal code can be filed by any citizen against another. Until the charges, which also incorporate an alleged breach of Thailand's Computer Crimes Act, are dropped, or the case goes to court, Chiranuch must make the 450 kilometer journey north once a month. She could receive a 32-year jail term if convicted of one of two lese-majeste charges she faces. The first goes to trial in February 2011, while the latest will be reviewed by a police panel that will decide whether a court case is warranted.

While in the process of preparing for the launch of a new report about the control and censorship of Thailand's online media, she recently squeezed in a few minutes to talk to PBS MediaShift at her organization's downtown Bangkok office.

"We have changed our domain name eight times since April," she said, referring to the month when Thailand's military-civilian-run Center for Resolution of Emergency Situation (CRES) pulled Prachatai into its swelling dragnet of blocked websites. It did so by citing threats to national security and stability amid violent protests in the center of Bangkok.

Red Shirts

SR_RedBkk_Sept1910-78-1024x685.jpg

Between March 12 and May 19 this year, over 90 people died and around 2,000 were injured when Thai police and soldiers clashed with anti-government "red shirts," some of whom were armed. The latter became known as the"men in black."

Amid such political turmoil, freedom of expression in Thailand has taken a nosedive. Four years of color-coded protests, a 2006 army coup, and a 2007 constitution re-write combine with concerns about what the future holds after the 64-year reign of King Bhumibol Adulyadej comes to an end to feed into a simmering unrest in an increasingly polarized society. (The king made a rare public appearance on November 5 for a dazzling fireworks and light show, and thousands of Thais turned out for his 83rd birthday.)

According to a recent Thammasat University report, "Control and Censorship of Online Media, through the Use of Laws and Imposition of Thai State Policies," just under 75,000 websites are blocked by Thai censors. The report's authors argue that this is in contravention of Section 45 of the Thai Constitution, which says, "[a] person shall enjoy the liberty to express his opinion, make speech, write, print, publicise, and make expression by other means." (The report is not yet available online.)

While these rights are qualified by other laws, as in all democracies that promote freedom of speech, Thailand's recourse to emergency decrees has swung the pendulum toward restrictive interpretations of and implementation of the relevant codes.

Some of the blocked sites and closed-down radio stations, many of which are affiliated with the red shirts, were deemed to have carried content or programs that incited violence. (In one sample protest, red shirts spilled blood on the private residence of Thai Prime Minister Abhisit Vejajjva in a black magic ritual apparently aimed at driving him from office.)

More recently, the red shirt backer, one-time telecom mogul and former Thai PM Thaksin Shinawatra, has been invited to testify at the United States' "Helsinki Commission" about what took place in Thailand during 2010. This is scheduled to take place on December 16, even though the Thai Government wants him extradited back to Thailand to face jail on corruption charges.

Facebook Rising in Thailand

Foreign reporters have also faced scrutiny and criticism in Thailand. CNN correspondent Dan Rivers was the target of a Facebook campaign at the height of the protests. Thais opposed to the red shirts gathered on an anti-Rivers Facebook page to object to what they deemed to be biased reporting in favor of the protestors. Undeterred, Rivers got the first footage of the armed "black shirts," offering close-up visual proof that the protest was not entirely peaceful -- and signaling that he sought to tell both sides of the story.

"If there is really hate speech or incitement to violence, it can be dealt with through the criminal courts," said Chiranuch during our interview. "The legal means are already there and there should not be a need to suppress legitimate voices."

CRES.JPG

For its part, her publication insists that it is an impartial and independent online alternative to Thailand's mainstream media. The site's success boils down to what Sawatree Suksee, a lecturer in law at Thammasat University and lead author of the aforementioned report, calls a growing interest in Thai-style citizen journalism.

"The government tries to interfere with mainstream media, so the Internet plays a different role in politics," she said at a recent public forum about Thailand's netizens.

She added that web-boards and social media are booming in Thailand, giving curious Thais their information fix. "The Internet is too fast for the government to react to," she said.

Boosted by the launch of a Thai-language version, the number of Facebook users has more than doubled since January, to 6.7 million, or around 10 percent of the country's population, according to Socialbakers.

"Facebook is a new technology and we don't have any way to control it yet," Chuti Krairiksh, the minister of information and communication technology recently told Agence France-Press. Perhaps his boss, Prime Minister Abhisit Vejajjiva, will hesitate to lock down the site now that he has over 531,000 fans, and while the site's popularity continues to grow.

Monitoring Comments

However, the structure of the country's lese-majeste laws means that the boards need careful monitoring by owners, lest they end up like Chiranuch. Aside from her case, other non-news websites are also falling afoul of the law.

Teepagorn "Champ " Wuttipitayamongkol manages the youth and lifestyle-oriented website exteen.com, which he says gets 300,000 unique visitors per day. He lamented to PBS MediaShift that he "has been called in by the police, though his site has nothing to do with politics."

Commenting on how political turmoil can sometimes engage Thai youth, he did say that "when the political incident took place they freely share their thoughts on my site." However, if one user makes a complaint about another user, citing lese-majeste to the police, the police are in turn obliged to investigate.

While Thailand has regressed in terms of freedom of expression, it must be acknowledged that researching or writing a story like this would be much more difficult in some other Southeast Asian countries, such as Laos or Vietnam, and downright dangerous-to-impossible in Burma, which is usually covered by reporters based in Thailand.

For now, Prachatai can be accessed inside Thailand, without apparent hindrance, on www.prachatai3.info, while the red shirt-linked Facebook page can be viewed under Ratchaprasong News.

Simon Roughneen is an Irish journalist currently in southeast Asia. He writes for Financial Times, Los Angeles Times, Asia Times, The Irrawaddy, ISN, South China Morning Post and others. He is a radio correspondent affiliated to Global Radio News and has reported for RTÉ, BBC, CBS, CBC Canada, Fox News, and Voice of America. He has worked in and reported from over 30 countries.

This is a summary. Visit our site for the full post ».

December 01 2010

18:35

Suu Kyi Set Free But Media Still Held Captive in Burma

Burma has in recent weeks been one of the top world news stories. The country's November 7 general election was followed less than a week later by the release of Aung San Suu Kyi, one of the world's best-known political dissidents, whose appearance at her front gate on Saturday, November 13, was carried on news networks around the world.

However, getting news out of Burma is no easy task. As detailed by MediaShift contributor Clothilde Le Coz, foreign journalists were banned from entering the country to cover the elections. Though an estimated 30 to 40 managed to sneak in on tourist visas, seven were deported after being detained by the police. Fourteen media workers are currently behind bars, some serving sentences of up to 35 years. There are a total of around 2,200 political prisoners who remain locked up, despite the release of Suu Kyi.

_kyi_400.jpg

Still, high-profile reporters such as BBC's John Simpson managed to interview Suu Kyi after her release, with no apparent retaliation or punitive measures by the ruling junta. One reporter in Rangoon, who asked to remain anonymous due to the restrictions on foreign journalists operating in Burma, told me the apparent indifference to the journalists-posing-as-tourists was more due to ineptitude on the part of the police, rather than newfound tolerance.

Telecom Backwater

Chinese correspondents are the only foreign press permitted to work in Burma on a full-time basis; news agencies and wire services such as Associated Press, Reuters and Agence France-Presse are only allowed to deploy Burmese stringers.

The information challenge was heightened in the week before the November 7 election, when a moratorium on new SIM cards was imposed by the junta, pushing the price of black market SIMs to well over $1,000. Economics are another form of censorship in Burma, as the average wage is a little over $200 per year. Even if the release of Suu Kyi somehow galvanized the public into another confrontation with the junta, there is little prospect of seeing the SMS-organized mass protests that emerged a decade ago elsewhere in southeast Asia, such as when tens of thousands of protesters took to the streets of Manila to demand the ouster of President Joseph Estrada.

All told, only four percent of the population are wired up to telephone networks, one of the world's lowest telephone usage rates. There are rumors that various multinational telecommunications companies are seeking ways into the market, and trying to get around U.S., E.U. and Australian sanctions by setting up shell companies in Singapore and Hong Kong. However, the privatization of various state assets's-economy-and-investment-175390 over the past year appears to have only benefited a narrow cabal of Burmese businessmen affiliated to the ruling junta. There are 1.3 million mobile phones and 866,084 landlines in Burma, according to statistics released by Myanmar Post and Telecommunications. The country has a population of roughly 50 million people. In contrast, over half the population of neighboring Thailand has mobile phones.

The country has been deemed "an enemy of the Internet" by Reporters Sans Frontiers (RSF), and Vincent Brossell, RSF's Asia representative, told me that "it is so risky to try to work with people inside Burma."

When it comes to the Internet, foreign news and social networking sites are blocked, though tech-savvy Internet users and Internet cafe owners in Rangoon and Mandalay can find ways around the wall using various proxies. However, just one in 455 Burmese were Internet users in 2009, according to the International Telecommunications Union (ITU). Internet cafes in Rangoon and Mandalay charge around $0.40 an hour for access, which is far too expensive for ordinary Burmese.

Enhanced Online Surveillance

A new ISP regime is being implemented by the ruling State Peace and Development Council, the official title for the junta. The planned "national web portal" will split the military, government and general ISPs into separate services, meaning that the publicly available Internet can be closed down or slowed without impinging on the government or army's web access. Critics say the new plan will enhance surveillance and online snooping, and make the country's few bloggers more vulnerable than ever to arrest.

During the monk-led mass protests in September 2007, citizens used the web to send reports and video to the outside world, circumventing the ban on foreign media. Blogger Nay Phone Latt was a central figure in that effort, but he was given a 12 year jail term for his efforts -- a harsh reminder of what happens to those who use the Internet to speak out against the ruling junta.

irrawaddy_logo.gif

Any hope that the release of Suu Kyi signals even a tentative loosening-up appear to be misplaced. The military censors have stuck to the old ways, as evidenced by the fact that only ten of the country's 100-plus privately owned publications were sanctioned to offer coverage of the release of Suu Kyi. All publications in Burma must have their content approved in advance by the Press Scrutiny Board. Speaking at a seminar on post-election Burma in Bangkok on November 23, Aung Zaw, the editor of Irrawaddy, a news magazine based in Thailand but run by Burmese journalists, told me that "media in Burma are trying to push the envelope with the censor, since the release of Aung San Suu Kyi."

Shawn Crispin, southeast Asia representative of the Committee to Protect Journalists, told me there is a "yawning news gap" caused by heavy censorship and intimidation inside Burma. Burmese exiles try to fill the void, operating mainly from India and Thailand. Clandestine reporters inside the country take great risks to funnel information to editors in Chiang Mai, New Delhi and beyond.

Late in 2009, Hla Hla Win, a reporter for the Norway-headquartered Democratic Voice of Burma, was sentenced to a total of 27 years in jail for violating the Electronics Act, another draconian lever used by the junta to stop information from getting around the country or to the outside.

First Eleven's Cover

However, since the release of Suu Kyi, even the state-watched media in Burma have shown daring creativity to get their message out, risking the wrath of the regime in the process. Sports journal First Eleven led with a front-page story on the Tuesday after Suu Kyi's release that was a combination of headlines ostensibly about English Premier League soccer matches, but that also used colored lettering to discuss Suu Kyi's release. Three innocuous-looking headlines -- "Sunderland Freeze Chelsea," "United Stunned by Villa" and "Arsenal Advance to Grab Their Hope" -- read as "Su Free Unite & Advance to Grab The Hope."

First Eleven got the ruse past the censors by submitting the advance copy of the page in black and white, but were subsequently hit with a two week publishing ban after the military realized that they had been fooled.

Simon Roughneen is an Irish journalist currently in southeast Asia. He writes for Financial Times, Los Angeles Times, Asia Times, The Irrawaddy, ISN, South China Morning Post and others. He is a radio correspondent affiliated to Global Radio News and has reported for RTÉ, BBC, CBS, CBC Canada, Fox News, and Voice of America. He has worked in and reported from over 30 countries.

This is a summary. Visit our site for the full post ».

October 22 2010

17:57

Michigan Official's Hate Speech Protected by First Amendment

For the last few months, Andrew Shirvell, an assistant attorney general of Michigan, has crusaded against the "radical homosexual agenda" of 21-year-old Chris Armstrong, the openly gay student-body president of the University of Michigan.

Shirvell has verbally attacked Armstrong at campus events, demonstrated outside the student's home, and has bashed the kid on his personal blog, Chris Armstrong Watch.

On that blog, which is now accessible only by invitation, Shirvell has called Armstrong a "privileged pervert" and "Satan's representative on the student assembly." He's accused Armstrong of "anti-Christian behavior" and "mocking God." One post included a photo of Armstrong with the word "resign" written across his face and a swastika superimposed on a gay pride flag; an arrow pointed from the flag to Armstrong. You can see it here.

Job on the Line

Shirvell appeared last month on CNN, on "Anderson Cooper 360," to defend his views and behavior, telling Cooper, "Chris Armstrong is a radical homosexual activist who got elected partly funded by the Gay and Lesbian Victory Fund to promote a very deeply radical agenda at the University of Michigan." Shirvell later added that he is a "Christian citizen exercising [his] First Amendment rights" and that "this is nothing personal against Chris." (Armstrong has also appeared on the show.)

Screen shot 2010-10-22 at 11.16.51 AM.png

Since then, the sun has set on Shirvell's cause. He's on a personal leave of absence from the attorney general's office, the University of Michigan just banned him from campus, and a state judge will rule next week on a request, from Armstrong, for a personal protection order against him. What's more, Shirvell is the subject of unanimous condemnations from the Michigan Civil Rights Commission, the Ann Arbor Human Rights Commission, and the Ann Arbor City Council.

His job is on the line, too. Michigan Governor Jennifer Granholm tweeted a few weeks ago that, "If I was still Attorney General and Andrew Shirvell worked for me, he would have already been fired." David Leyton, the Democratic nominee for state attorney general, echoed Granholm, and a Facebook page, liked by over 16,000 people, maintains that Shirvell's "long history of bigotry makes him unfit to represent the state of Michigan."

Meanwhile, Mike Cox, the state attorney general, has refused to fire Shirvell. He released a statement a few weeks ago saying that Shirvell's "immaturity and lack of judgment outside the office are clear," but later told CNN that the First Amendment protects him -- that public employees do have the right to "express what they think and engage in political and social speech."

Cox is right.

The Legal Issues

Shirvell may be on thin ice, legally, for a variety of reasons (for example, his conduct towards Armstrong could cause him to be charged with harassment or stalking), but the First Amendment does protect his blogging. To make sense of this, it's helpful to keep a few things in mind.

First, the free speech clause protects the right of a person to speak without government interference. Speech includes blogging and others forms of online expression. That means, for example, a private employer can fire an employee because of his blogging, but a public employer, doing the same thing, might run afoul of the First Amendment. As an assistant attorney general, Shirvell is a public employee entitled to protection.

Second, the Supreme Court has ruled that a public employer may impose some restraints on the expression of its employees, on the theory that the government, like private employers, needs a significant degree of control over the management of its personnel and internal affairs. Still, significant does not mean unlimited.

In a series of cases, beginning with Pickering v. Board of Education, in 1968, the Court has created a balancing test to weigh the employee's speech interests against the government's interests in providing an efficient service to the public. Out of that series came a few general principles, applied here to online expression.

Public employees have a right to blog on their own time on topics unrelated to their employment. They also have a right to blog on their own time on topics related to their employment, if the topics are matters of public concern. Finally, the First Amendment does not protect them at all if they are blogging in the course of their regular duties, rather than on their own time.

Blogging During Work?

Against that backdrop, if the attorney general tried to fire Shirvell, the courts would call upon the First Amendment and likely would focus on whether he was blogging on his own time on topics unrelated to his employment. Shirvell has said a number of times that he blogged only at home, after hours, and Cox himself told CNN that Shirvell's job performance has been satisfactory. It's safe to say, too, that the content of the blog posts, on religion and homosexuality, were unrelated to his employment. In other words, they did not comment on the functioning of his workplace.

In turn, though, the attorney general's office might argue that Shirvell's blogging, regardless of the content, is related to his employment because it caused a substantial disruption in the workplace. After all, Cox had to investigate the issue and respond personally, the media blitz brought into question the impartiality and professionalism of the office, etc.

That would be a hard sell, and I doubt the courts would buy it, no matter any disruption, because Shirvell was using his blog to engage in social and political speech, which occupies what the Supreme Court once called the "highest rung of the hierarchy of First Amendment values." Thus, it's entitled to special protection.

All of which means Andrew Shirvell, the state attorney who picked on a college student, the Christian who superimposed a swastika on a gay-pride flag, the guy who said it wasn't personal while making his attacks, is protected by the First Amendment.

Freedom for the thought that we hate, indeed.

Jonathan Peters is a doctoral student and the Frank Martin Fellow at the Missouri School of Journalism, where he's specializing in the First Amendment. He has a law degree from Ohio State University and has written on legal issues for a variety of newspapers and magazines, including the Plain Dealer, Columbus Dispatch and the National Jurist. Beyond journalism, Peters has worked at every level of the federal judiciary, with externships at the U.S. Supreme Court, the U.S. Court of Appeals for the Sixth Circuit, and the U.S. District Court for the Southern District of Ohio. He can be reached at jonathan.w.peters@gmail.com.

This is a summary. Visit our site for the full post ».

September 30 2010

19:42

Will France Sacrifice Online Freedom for the Sake of Security?

On September 8, the French Senate voted for a bill, called Loppsi 2, that seeks to create a dangerous online filtering system that could jeopardize the work of journalists and bloggers, as well as online freedom of speech for French citizens.

If this bill becomes law, any French website could be shut down with nothing more than a notification from an administrative authority. When the bill was passed in a lower house last February, it required intervention from a judge to make that happen.

The situation in France reflects the trend that's seeing democratic states such as England and Spain step up online surveillance and control. This could pose a serious threat to freedom of expression and information. Under the current French bill, a government department called the Central Office for Combating Crime Related to Information and Communication Technology would be able to order Internet service providers and website hosts to filter websites without requiring a court order.

Filter Failure

The effectiveness of online filtering has been disputed by many studies, including one released by the French Federation of Telecom and Electronic Communications Companies in July 2009 entitled, "Study of the Impact of Blocking Paedophile and Porn Sites." At Reporters Without Borders, we raised concerns about the law, noting in a release that:

Filtering mechanisms will not be able to prevent their circumvention by offenders, will not eliminate offending content from the Internet and will have no impact on the source of the problem. And furthermore, they tend to filter out innocent content as well, such as the websites of child protection groups or sites that defend minors who have been the victims of sexual abuse.

zommerman.jpgJeremie Zimmerman, co-founder and spokesperson of the advocacy group La Quadrature du Net, has long been warning against the dangers of this law. He cautions about how "collateral censorship" can affect the work of reporters and bloggers.

"Technically, blocking legal websites is inevitable," he said. "Unfortunately, there is no legal means to gain access to the list of the blocked websites."

Brice Manenti covers the issue for the magazine Nouvel Observateur. "With Loppsi 2, I am worried for freedom of speech as a citizen, more than as a journalist," he said. "Allowing filtering is a way to get to a generalized filtering of the web, as it is in China for example. Freedom of expression would be under particular threat."

Legalized Spyware

In July 2009, an earlier version of the law stated that the police who suspect criminal activity would be able to use remotely introduced spyware under an investigating judge's supervision in order to obtain information from computers without the knowledge of those targeted. If any kind of criminal activity is discovered -- even if it's outside of the initial suspicions -- the information obtained can still be used to bring a prosecution.

The French Commission on computing and freedoms reserved judgment regarding this aspect of the law in 2009. (Journalists would be protected from of this kind of spyware by a law that protects the the secrecy of journalists' sources, but bloggers and amateur journalists would not be protected.) The law would also extend the length of phone taps on people suspected of a crime.

In and of itself, Loppsi 2 is not a bill focused on freedom of speech and freedom of the press; but as it is currently drafted it ends up posing a threat to these principles. In a September article, the French daily newspaper Le Monde accused presidential aides of using a domestic intelligence agency to identify an official who was leaking information about a judicial investigation about a case involving labor minister Eric Woerth and L'Oréal heiress Liliane Bettencourt. Reporters without Borders subsequently joined with Le Monde in a lawsuit related to these actions. From our release about this action:

Reporters Without Borders campaigned for years for a law explicitly protecting the confidentiality of journalists' sources and appeared before both the National Assembly and the Senate when they examined the proposed law that was eventually adopted.

The organization is outraged that covert police activity has trampled on the protection of sources enshrined in article 2 of this law. The authorities have a right to investigate leaks of confidential information but such investigations must be conducted according to the law. Any failure to respect the law protecting journalists' sources must be punished or else it will be rendered meaningless.

In light of this example, there is reason to be concerned about the government's increased use of spyware. It seems like it would only be a matter of time before it finds its way onto bloggers' computers and machines inside newsrooms.

Clothilde Le Coz has been working for Reporters Without Borders in Paris since 2007. She is now the Washington director for this organization, helping to promote press freedom and free speech around the world. In Paris, she was in charge of the Internet Freedom desk and worked especially on China, Iran, Egypt and Thailand. During the time she spent in Paris, she was also updating the "Handbook for Bloggers and Cyberdissidents," published in 2005. Her role is now to get the message out for readers and politicians to be aware of the constant threat journalists are submitted to in many countries.

This is a summary. Visit our site for the full post ».

August 26 2010

18:06

Free Speech at Stake as India Demands Encrypted BlackBerry Data

Next week will be decisive for BlackBerry corporate users. BlackBerry maker Research In Motion (RIM) could provide a solution to help security agencies in India access corporate email by obtaining encrypted data in readable formats. If RIM does not offer a solution before the end of the month, India has warned that it will block BlackBerry Messenger service in the country for corporate users.

BlackBerry phones encrypt their services better than most smartphones do, and this has been one of the selling points for BlackBerry as a device for corporate users. RIM has to this point refused to provide access codes that would allow governments to monitor the content of encrypted messages. Should RIM provide the Indian government with access to the data, it would not only hurt freedom of expression -- it would likely also hurt the BlackBerry's reputation as the business device of choice.

About More Than The BlackBerry

The Indian government isn't the only seeking access to BlackBerry data. The United Arab Emirates and Saudi Arabia claim that BlackBerry's services break their laws and threaten national security. The UAE's Telecommunication Regulatory Authority announced that it will suspend BlackBerry's instant messaging, email, web browsing and roaming services starting October 11. Saudi Arabia, meanwhile, is still allowing BlackBerry's instant messaging service to operate. Saudi authorities had planned to suspend it on August 6, but they only ended up blocking the service for a few hours. The company and government continue to work toward a compromise.

Reporters Without Borders is worried about the BlackBerry issue because the "national security" argument is just a pretext for these countries to take steps to restrict access to new technology and to tools that help with freedom of expression. In the UAE, some BlackBerry users were arrested for using BlackBerry Messenger to try to organize a protest against increased gas prices.

What really bothers these countries is their inability to monitor the communication flowing via BlackBerry's services. Indonesia, Egypt, Lebanon, Algeria and Kuwait have also voiced concern about BlackBerry's encrypted services, and it's no coincidence that some of these countries are home to a wide range of censorship measures. In Indonesia, for example, the government requires ISPs to filter out porn -- without providing them a specific list of offending sites. The inevitable result is that the ISPs cause collateral damage by blocking other websites with no direct link to pornography. This is also the case in Saudi Arabia. Filtering also slows down connection speeds throughout the country. Aside from censorship, these countries are also known for monitoring the communications and web usage of citizens.

It's therefore natural to question whether the requests for BlackBerry to offer access to its services are truly meant to fight terrorism, or if it's about finding another way to monitor the communications of citizens?

U.S. Perspective

These countries would do well to learn from an example in the United States. In 2003, the Department of Justice drafted legislation that would have lengthened prison sentences for people who used encryption in the commission of a crime. Defenders of encryption said it would do little to help catch terrorists, and would instead hamper the work of activists. The legislation never passed -- even though the fight against terrorism was a top priority of the government.

RIM's BlackBerry encryption isn't alone in being targeted. India plans on asking Google and Skype for similar access, which means this issue is about more than just one company's device. It's about the future of private communications in countries prone to censorship and other abuses.

Clothilde Le Coz has been working for Reporters Without Borders in Paris since 2007. She is now the Washington director for this organization, helping to promote press freedom and free speech around the world. In Paris, she was in charge of the Internet Freedom desk and worked especially on China, Iran, Egypt and Thailand. During the time she spent in Paris, she was also updating the "Handbook for Bloggers and Cyberdissidents," published in 2005. Her role is now to get the message out for readers and politicians to be aware of the constant threat journalists are submitted to in many countries.

This is a summary. Visit our site for the full post ».

August 10 2010

16:21

Saudi Blogger/Activist Jailed for 'Annoying Others'

Although Saudi Arabia was one of the first countries to have been authorized to register domain names in Arabic, it is still one of the most repressive countries when it comes to the Internet.

For example, since 2009 Internet cafes in the country have been required to install hidden cameras, supply a list of customers and websites accesses, not permit the use of prepaid cards or of unauthorized Internet access via satellite, close at midnight and not admit minors. In the latest development of concern, Sheikh Mekhlef bin Dahham al-Shammari, a writer/blogger, human rights activist and social reformer, is in jail. Why? For "annoying others." He has not yet been formally charged.

Blogger Rhymes With Prisoner

Al-Shammari has often written about poverty and unemployment in the kingdom, accusing the government of ignoring these problems because it is obsessed with public morality and keeping men and women apart. He has also highlighted the government's failure to promote tourism, and its discrimination against the Shiite minority. Although a Sunni, he was critical of the influential Saudi preacher Mohammed al-Arifi for referring to one of Iran's most respected Shiite clerics, Grand Ayatollah Ali al Sistani, as an "obscene atheist."

In an article published in April of last year, "My Dear Christian", al-Shammari contrasted the work of an American Christian who was killed while helping to protect Palestinian Muslim children with the conditions imposed by Saudi Muslim charities that require its recipients exhibit proper Islamic conduct.

Al-Shammari has been arrested several times in recent years, in part because of his defense of Saudi Arabia's Shiite minority. He told Human Rights Watch that prosecutors used his articles to accuse him of spreading discord among Muslims. His articles criticizing the conservative interpretations of Islam promoted by Saudi officials led to his arrest on May 15, after which he was released on bail. His latest arrest took place on June 15 in Jubail. He was transferred to Damman prison at the start of this month.

Al-Shammari is not the first blogger jailed for seemingly arbitrary reasons in Saudi Arabia. For example, Fouad al Farhan, a blogger known for advocating political reforms, was arrested in 2007 in Jeddah. His arrest was reported by other Arab bloggers, and the Saudi authorities also confirmed he was being held in solitary confinement for "interrogation." No official charges were ever cited or laid. He was released from prison on April 26, 2008. Al Farhan, who is in this thirties, was one of the first Saudi bloggers to dispense with a pseudonym on his site. He was also the first cyber-dissident to be jailed in the country -- but he's far from the last.

According to information from the Arabic Network for Human Rights, Munir alJassas, a prominent Internet activist and defender of the rights of Shiites, has been in jail since November 7, 2009. This is apparently because of his comments and articles on websites and online forums such as Tahara and Shabaket AlRames, where he is one of the most prominent writers.

Free Speech in Saudi Arabia

In the kingdom, free speech is under constant threat. In March, the Saudi cleric Sheikh Abdul-Rahman al-Barrak, a professor of religion at the Imam Muhammad bin Saud Islamic University in Riyadh, declared a fatwa against two journalists. Reuters reported that he "was responding to recent articles in al-Riyadh newspaper that questioned the Sunni Muslim view in Saudi Arabia that adherents of other faiths should be considered unbelievers."

"Anyone who claims this has refuted Islam and should be tried in order to take it back. If not, he should be killed as an apostate from the religion of Islam," read the fatwa.

In another example, the journalist Rozanna al-Yami was sentenced to 60 lashes by a judge because she worked for the Lebanese Broadcast Corporation (LBC), a satellite TV station that shocked conservative Saudis a year ago by broadcasting an interview with a Saudi man talking openly about his sex life.

There was one encouraging development. In June of last year, Saudi Arabia agreed to have its human rights records reviewed by the U.N. Human Rights Council in Geneva, and it welcomed Navi Pillay, the UN high Commissioner for human rights last April. Sheikh Mekhlef bin Dahham al-Shammari was among the few activists who met her.

However, the fact that the authorities have jailed him for such a ridiculous and offensive reason ("annoying others") shows that the kingdom is still not committed to changing its approach to free speech. If this charge is taken seriously by authorities, then how many more bloggers will end up behind bars for similar reasons?

Clothilde Le Coz has been working for Reporters Without Borders in Paris since 2007. She is now the Washington director for this organization, helping to promote press freedom and free speech around the world. In Paris, she was in charge of the Internet Freedom desk and worked especially on China, Iran, Egypt and Thailand. During the time she spent in Paris, she was also updating the "Handbook for Bloggers and Cyberdissidents," published in 2005. Her role is now to get the message out for readers and politicians to be aware of the constant threat journalists are submitted to in many countries.

This is a summary. Visit our site for the full post ».

July 01 2010

09:12

WikiLeaks, iPhone Incidents Show that U.S. Needs Shield Law

The United States' global reputation as a champion of free speech is at stake. This is partly because the legal framework has not kept pace with the evolution of free speech, and also because the Freedom of Information Act is not being applied correctly. Today, the U.S. is in danger of losing its place as the bastion of free speech because other countries are stepping up and creating new ways to protect freedom of expression.

Issues With FOIA and Protecting Sources

As many people are now aware, a secret military video featuring a deadly U.S. air strike in Afghanistan that killed several civilians was published on WikiLeaks on April 5, 2010. Among the dead were Reuters photographer Namir Noor-Eldeen, 22, and his driver, Saeed Chmagh, 40.

The release of the video caused a scandal and made major news. But the truth is that it should have been made public long ago. Reuters had filed a FOIA request in for the video back in 2007, but the footage was never released. According to the Freedom of Information Act (FOIA), it should have been. Under FOIA, all U.S. government agencies are required to disclose records upon receiving a written request, except those records that are protected from disclosure as a result of nine exemptions and three exclusions.

WikiLeaks specializes in securing confidential information from whistleblowers in return for guarantees of anonymity. This work has led its founder, Julian Assange, to fear for his freedom in the U.S.

julian_assange_250px.jpg

"[U.S.] public statements have all been reasonable. But some statements made in private are a bit more questionable," Assange told the Guardian last week. "Politically it would be a great error for them to act. I feel perfectly safe ... but I have been advised by my lawyers not to travel to the U.S. during this period."

The lack of access to government information is one problem in the U.S. Another significant issue for bloggers and reporters is the ability, or lack thereof, to protect their sources. The WikiLeaks case also has implications for protecting sources.

It recently came to light that a 22-year-old U.S. intelligence specialist in Baghdad named Bradley Manning contacted a former hacker named Adrian Lamo via IM and "confessed" that he was the one who leaked the controversial video. Lamo had told Manning that he was a journalist and subsequently turned him in to the authorities.

After Manning was arrested, the story was published in Wired magazine. The bottom line was that Manning's so-called confession could not be protected by a shield law even though he thought he was speaking to a reporter. Admittedly, this is a rare situation. Usually, government officials request that journalists reveal their sources, rather than having a journalist turn someone in.

In those situations, a shield law should help with the protection of sources. But another recent incident is testing the limits of a shield law in California.

The iPhone Incident

On April 23, police carried out a raid on the California home of blogger Jason Chen, the editor of gadget blog Gizmodo. The site had obtained -- in a questionable way -- a prototype of the next-generation iPhone and published an exclusive about it, together with photos and videos, without Apple's agreement.

The state of California's shield law is one of the most protective in the country when it comes to sources and the working material of journalists. Gawker Media, which owns Gizmodo, is claiming that the police search warrant was illegal under section 1524(g) of the Californian criminal code. It is also citing O'Grady vs Superior Court, a case in which an appeal court ruled that the shield law applies to online journalists.

Screenshot.jpg

The courts must now decide between those who invoke the shield law's protection in the name of the right to information, and those who accuse Gizmodo of receiving stolen property.

Reporters Without Borders has been advocating for years to obtain a federal shield law when it comes to the protection of sources, but that prospect seems far off at this point.

Maybe the current difficulties in the U.S. come from the fact that the First Amendment rules that no law can be made against free speech. But what about having a specific law protecting it? What would that look like?

Is Iceland a New Model?

On June 15, Iceland's parliament unanimously approved a resolution to draft legislation for the protection of media, journalists and bloggers. It aims to create a single, holistic law to guarantee the protection of free speech.

According to the resolution, "the proposers suggest that changes be made to laws regarding the rights and duties of official employees (no. 70/1996) such that official employees be allowed to break their duty of silence in the case of extreme circumstances of public interest. Similar changes could be made to municipal governance law (no. 45/1996) regarding employees of municipal governments."

The initiative comes partly from the fact that in August 2009 the country's RUV television station was prevented from broadcasting a story about the Kaupthing Bank, which was immersed in a financial crisis. Once again, the story was based on information from WikiLeaks, which had already published information about the bank. An injunction obtained by Kaupthing Bank prevented RUV from broadcasting the item, but the station told its viewers about the injunction itself.

Now it appears as though that won't ever happen again in Iceland. The country will soon be a leader in protecting sources and freedom of speech. This kind of legislation is needed by netizens and journalists the world over. It has to spread to countries far and wide because, as of today, all the jailed reporters in the world are local ones.

Another useful feature of the Icelandic proposal is that the country will likely host websites to ensure their servers are not forcibly shut down. This law would be a legal shelter for the sources and source material of reporters, similar to the one previously set up by Reporters Without Borders.

Clothilde Le Coz has been working for Reporters Without Borders in Paris since 2007. She is now the Washington director for this organization, helping to promote press freedom and free speech around the world. In Paris, she was in charge of the Internet Freedom desk and worked especially on China, Iran, Egypt and Thailand. During the time she spent in Paris, she was also updating the "Handbook for Bloggers and Cyberdissidents," published in 2005. Her role is now to get the message out for readers and politicians to be aware of the constant threat journalists are submitted to in many countries.

This is a summary. Visit our site for the full post ».

May 06 2010

19:05

China Tightens Media Control at Shanghai Expo

In honour of the Expo Shanghai China, the biggest display of Chinese might since the 2008 Olympic Games, Reporters Without Borders is inviting Internet users to visit a page on its website, the "Garden of Freedoms," that's dedicated to the freedoms that are often oppressed in China.

Hundreds of countries, regions and corporations are participating in this exhibition, but none of them have dared to make free expression part of their pavilions for fear of upsetting the Chinese authorities. Those authorities issued a directive on the eve of the opening of the Expo that said:

As regards the activities of the central authorities during the Shanghai Expo, all the media must use the reports of the Xinhua central news agency or other central media outlets. The other media must not publish their own reports and must not ask national leaders questions during their visits to Shanghai.

It added: "As regards the inaugural ceremony, you must respect the already established rules. It is forbidden to express reservations and if any incident suddenly takes place, it is forbidden to report it without permission or to publish any comment."

106 Netizens and Journalists in Jail

img-expo.jpgThat kind of control and repression is commonplace in China. As of today, 106 netizens and reporters are in jail there because they tried to challenge the kind of rules expressed in the directive. China has more people in prison for exercising freedom of expression than any other country in the world.

In light of that fact, Reporters Without Borders is asking Americans to sponsor at least one of these prisoners. By adding your name to a list of a prisoner's supporters, you receive updates on their situation and help create awareness about the importance of their release.

'State Secret' Gets Wide Definition

Chinese authorities often use the "state secret" excuse to justify jailing dissidents and journalists. Of course, the definition of "state secret" is very broad and leaves the door open to all sorts of abuses.

In the latest expansion of this tool for repression, on April 29 China adopted an amendment to the State Secrets Law that forces Internet and telecommunications companies to cooperate closely with the authorities on matters relating to national security.

Under the amendment, which will take effect on October 1, these companies are required to block transmission of state secrets over their networks, to keep records of the activity, and alert authorities to possible violations. They could also be forced to suppress certain kinds of content.

In reality, these companies already cooperate with the authorities on national security matters. Will this new amendment require them to be more pro-active, and therefore engage in tighter censorship? The law also doesn't say if foreign companies in these sectors are impacted.

The Propaganda Department, which is loyal to President Hu Jintao, whom Reporters Without Borders deemed a Predator of Press Freedom, has also launched a new offensive against the "hostile forces" that are allegedly using the Internet to destabilize China.

Wang Chen, the number two leader in the department, has urged parliamentarians to adopt an Internet Administration Law in order to block "dangerous reports" and prevent "infiltration of the Internet by hostile forces."

These issues are the backdrop for Expo Shanghai China, which has the slogan "Better city, better life." A more apt motto would be "Censored city, censored life."

Clothilde Le Coz has been working for Reporters Without Borders in Paris since 2007. She is now the Washington director for this organization, helping to promote press freedom and free speech around the world. In Paris, she was in charge of the Internet Freedom desk and worked especially on China, Iran, Egypt and Thailand. During the time she spent in Paris, she was also updating the "Handbook for Bloggers and Cyberdissidents," published in 2005. Her role is now to get the message out for readers and politicians to be aware of the constant threat journalists are submitted to in many countries.

This is a summary. Visit our site for the full post ».

March 25 2010

15:00

The Barclays case: Will “hot news” limit the right to aggregate news?

[Sam Bayard, one of our friends down the street at the Citizen Media Law Project, has written the most detailed analysis I've seen of the Barclays v. TheFlyOnTheWall.com case. While focused on the work of financial analysts, the case could have serious impact on the ability of websites to aggregate and curate content. It also invokes the "hot news" doctrine that some news organizations have argued limits the kinds of linking other sites can do to their content. We're reprinting Sam's piece below; it's worth a read for anyone interested in how the new news ecosystem is evolving. —Josh]

In 2003, prolific legal scholar and 7th Circuit Judge Richard Posner published a law review article entitled "Misappropriation: A Dirge," which discussed — among other things — the continued viability of "hot news" misappropriation, a theory of unfair competition that dates back to the Supreme Court’s 1918 case, International News Service v. Associated Press, 248 U.S. 215 (1918), which involved unauthorized re-publication of wire service reports. Contrary to what Posner’s title might suggest, the article didn’t outright announce the death of the hot news doctrine, but it did paint a picture of a legal doctrine on the ropes — disdained by noted jurists, unwise as a matter of policy, and limited in practical significance. For better or worse, a decision issued last Thursday shows the doctrine to be very much alive and relevant. In fact, the case raises some disturbing prospects for news aggregation and sharing of information on the Internet more generally.

In Barclays Capital Inc. v. TheFlyOnTheWall.com, 06 Civ. 4908 (S.D.N.Y. Mar. 18, 2010), Judge Denise Cote of the United States District Court for the Southern District of New York issued a permanent injunction requiring the Internet-based financial news site FlyOnTheWall.com ("Fly") to delay its reporting of the stock recommendations of research analysts from three prominent Wall Street firms, Barclays Capital Inc., Merrill Lynch, and Morgan Stanley. The injunction requires Fly to wait until 10 a.m. E.S.T. before publishing the facts associated with analyst research released before the market opens, and to postpone publication for at least two hours for research issued after the opening bell.

The injunction is based on Judge Cote’s finding, after a bench trial, that Fly engaged in hot news misappropriation, "free-riding activity that is directly competitive with the Firms’ production of time-sensitive information, thereby substantially threatening their incentive to continue in the business." Barclays, slip op., at 87. Morgan Stanley and Barclays also succeeded on copyright infringement claims relating to Fly’s unauthorized copying and distribution of excerpts from their research reports for a few weeks in 2005, but the court awarded relatively minor damages on these claims and this doesn’t impact Fly’s current business practices, which no longer involve verbatim reproductions or close paraphrases of analyst research.

Background

Like other Wall Street firms, Barclays, Merrill Lynch, and Morgan Stanley produce analyst research reports on stocks. The firms distribute these reports for a fee to their clients, usually large institutional investors. The firms often release these reports before the NYSE opens for the day, and the reports contain recommendations (buy/sell/hold) that, according to the firms, often spur investors into making trades, usually through the firm that issued the report. As a result, the release of a report often has a significant impact on the market price for the stock in question.

The firms’ paying clients gain access to the reports through several means, including the firms’ password-protected websites, licensed third-party distributors like Bloomberg and Thomson Reuters (presumably also using some sort of password protection), and email messages. In addition, the firms host private conference calls or webcasts in which their analysts discuss their research reports and recommendations with clients. Access to these calls and webcasts is restricted to those with the required passcode or login.

The firms take various precautions to ensure that the reports go only to paying clients. For example, they forbid employees from sharing the reports, their licensing agreements purport to forbid the clients from redistributing the research content, and licensed distributors like Bloomberg and Reuters contractually agree to maintain a "firewall" so that their media arms can’t obtain information from their research arms.

Inevitably, though, the research reports and the recommendations contained in them leak out, and Fly pioneered the business model of publishing this information for its own clients on a newsfeed over the Internet. The model has caught on, and, according to the court, presently "there is a crowded marketplace with small internet companies and major news organizations reporting the Firms’ Recommendations before and after the market opens." Barclays, slip op. at 35.

According to Judge Cote’s opinion, it looks like Fly’s operations have changed significantly over the last few years, largely in response to the firms’ lawsuit. Before 2005, Fly relied primarily on employees at the firms who emailed research reports to Fly after they were released to clients (this was pretty clearly a violation of the employees’ duties of loyalty and confidentiality to the firms). At that time, Fly staff would type the recommendation as a headline, sometimes accompanied by a verbatim reproduction or close paraphrase of a passage from the report explaining the basis for the recommendation. Id. at 32. Hence the copyright claims for Fly’s conduct in 2005.

As a result of the lawsuit, however, Fly apparently changed its information-gathering process. According to testimony from Ron Etergino, Fly’s president and majority owner, he "no longer feels free to look at the research reports, even if someone should send them to him," id. at 33, and he now gathers information about the firms’ reports from other sources:

According to Etergino, he checks first to see what Recommendations have been reported on Bloomberg Market News. Then he checks Dow Jones, Thomson Reuters, and Fly’s competitors such as TTN, StreetAcount.com, and Briefing.com. Next, he visits chat rooms to which he has been invited to participate by the moderator. . . . Etergino also receives "blast IMs" through the Bloomberg, Thomson Reuters, or IMTrader messaging services that may go to dozens or hundreds of individuals. Finally, Etergino exchanges IMs, emails, and more rarely telephone calls with individual traders at hedge funds, money managers, and other contacts on Wall Street.

Id. at 34. In other words, Fly acquires information about the reports through a process that looks a whole lot like good-old fashioned journalism. And it largely relies on information that is publicly available through mainstream and Internet media reports, IM blasts, and what appear to be open chat rooms. The result is a headline like this: "EQIX: Equinox initiated with a Buy at FofA/Merrill. Target $110." Id. at 27.

Hot News and Copyright Law

As noted, the main dispute in the Barclays case was not about verbatim copying, but about Fly publishing time-sensitive facts from the firms’ research reports — essentially, the buy/sell recommendations. Facts are not protected by copyright law. Feist Publ’ns, Inc. v. Rural Telephone Service Co., Inc., 499 U.S. 340, 345 (1991). While the firms’ recommendations aren’t exactly facts in the same way as "hard news," the firms appeared to concede that they couldn’t stop Fly’s current reporting practices through resort to copyright law. Enter the hot news misappropriation doctrine, which is controversial precisely because it provides IP-like protection to facts despite copyright law’s bedrock policy that facts are in the public domain.

In International News Service v. Associated Press, 248 U.S. 215 (1918), the Supreme Court created the hot news misappropriation doctrine as a matter of federal common law, and some state courts, like those in New York, adopted it as part of state unfair competition law. The INS case arose after British and French censors barred INS from sending war dispatches to the United States because Hearst had offended the British and French by siding with Germany at the outset of WWI. See Posner, at 627. INS employees got around this problem by paraphrasing AP dispatches published in east coast newspapers and sending them by telegraph to the west coast for publication in Hearst newspapers. See INS, 248 U.S. at 231-32 (at issue was INS’ practice of "copying news from bulletin boards and from early editions of complainant’s newspapers and selling this, either bodily or after rewriting it, to defendant’s customers"); id. at 259-60 (Brandeis, J., dissenting) ("The means by which the International News Service obtains news gathered by the Associated Press is also clearly unobjectionable. It is taken from papers bought in the open market or from bulletins publicly posted.").

The INS Court acknowledged that AP had no copyright claim because it had failed to register and/or place notice on its news reports (no longer a requirement under U.S. copyright law), and because copyright law did not extend to the facts in the reports. But, the Court nonetheless enjoined INS from using AP’s news reports in direct competition with the news service, finding that the INS’s free riding "speaks for itself and a court of equity ought not to hesitate long in characterizing it as unfair competition in business." Id. at 240. Justices Holmes and Brandeis wrote powerful dissents, decrying the majority’s opinion as unprecedented, unnecessary, and unwise.

The main policy justification advanced by the majority, which remains the motivating principle behind hot news doctrine today, is that protecting hot-news-type information is necessary to preserve the incentives that drive economic actors to make the substantial investment required to produce a socially valuable product or service in the first place. Posner characterizes this policy impulse as protecting against the danger of "killing the goose that laid the golden eggs." Posner, at 628.

In the Barclays case, the idea is that Wall Street research reports are a social good — they help disseminate information important to the proper functioning of the securities markets that otherwise would not be produced. This may be a disputable proposition, but it’s one the court accepted. And, the theory goes, Wall Street firms like Barclays and Merrill Lynch won’t go to the expense of producing these socially valuable reports if companies like Fly can free ride off of them and undermine the money-making potential of the practice. Again, it’s disputable whether Fly’s conduct rather than other economic factors (like international economic meltdown) has hurt demand for the firms’ reports, but Judge Cote found as a matter of fact that Fly’s activities did create a substantial disincentive.

I’ll leave to the economists the question of whether or not all this is wise economic policy. But from a legal perspective, the hot news doctrine creates an obvious tension with copyright law because, as noted above, it creates a pseudo property right in facts that copyright law says are in the public domain. This raises the specter of preemption: that is, a situation where federal law displaces inconsistent state law under the Supremacy Clause. Judge Cote’s opinion in Barclays does a very thorough job on this issue and determines — rightly, in my view — that federal copyright law does not preempt hot news misappropriation, or at least a narrow version of it. This result was a foregone conclusion for Judge Cote because the Second Circuit Court of Appeals had already said as much in National Basketball Association v. Motorola, Inc., 105 F.3d 841 (2d Cir. 1997), which is controlling precedent in the Southern District of New York.

Under NBA, the narrow version of hot news misappropriation that survives copyright preemption has the following elements:

(i) a plaintiff generates or gathers information at a cost; (ii) the information is time-sensitive; (iii) a defendant’s use of the information constitutes free riding on the plaintiff’s efforts; (iv) the defendant is in direct competition with a product or service offered by the plaintiffs; and (v) the ability of other parties to free-ride on the efforts of the plaintiff or others would so reduce the incentive to produce the product or service that its existence or quality would be substantially threatened.

Barclays, slip op. at 55 (quoting NBA, 105 F.3d at 845). Posner says that the "meat" of the test is in element (v), with (i) through (iv) describing a situation where (v) is likely to be satisfied. Posner, at 632. Therefore, "[t]he criterion appears to mean that states can protect fact gathering without running afoul of the preemption provision in the federal copyright statute only when unauthorized copying of the facts is likely to deter the plaintiff or others similarly situated from gathering and disseminating the facts that the defendant has copied." Id. The test is "alarmingly fuzzy once the extreme position of creating a legal right against all free riding is rejected, as it must be." Id. at 638.

In other words, hot news doctrine presents an inherently subjective and necessarily fact-specific standard, and one would expect courts to be cautious in finding it met, if for no other reason than to avoid the potential conflict with copyright law and to promote the public’s access to information. In Barclays, the firms convinced Judge Cote at trial that each element was satisfied, showing that, while it may take a unique set of facts, it’s not an impossible task.

What About the First Amendment?

Notably lacking from Judge Cote’s very thorough opinion is any discussion of how hot news misappropriation interacts with the First Amendment. This could be because Fly didn’t argue the point, at least not directly. While this post suggests that Fly’s lawyers "played the free speech card," it is hard for me to believe that Judge Cote would fail to address such an important argument if it were raised directly in the briefs. We have a student looking through the documents on PACER, which are pretty extensive, but so far we haven’t turned up any direct invocation of the First Amendment, except for an affirmative defense in the answer. As we’ll see below, though, Fly undoubtedly raised factual arguments that bear on the question.

The First Amendment issue is an important one because the Supreme Court didn’t address it in INS. Justice Brandeis’s dissent gives us a First Amendment tingle in his famous statement, "[t]he general rule of law is, that the noblest of human productions — knowledge, truths ascertained, conceptions, and ideas — become, after voluntary communication to others, free as the air to common use," 248 U.S. at 250 (Brandeis, J., dissenting), but even he didn’t seem to appreciate the constitutional implications of the case. It’s also an important question because First Amendment doctrine has developed considerably since 1918, and free speech concerns of which the Justices had only a vague inkling now have become an accepted part of the constitutional landscape.

The First Amendment issue raised by the case is one I’ve addressed before. A long line of Supreme Court cases hold that the First Amendment protects truthful speech on matters of public concern. See, e.g., Bartnicki v. Vopper, 532 U.S. 514, 527-28, 533-35 (2001) (First Amendment barred imposition of civil damages under wiretapping law for publishing contents of conversation relevant to matter of public concern); Florida Star v. B.J.F., 491 U.S. 524, 534 (1989) (First Amendment barred imposition of civil damages on newspaper for publishing rape victim’s name); Smith v. Daily Mail Publ’g Co., 443 U.S. 97, 103-06 (1979) (First Amendment barred prosecution under state statute for publishing names of juvenile offenders without permission of court); Landmark Communications, Inc. v. Virginia, 435 U.S. 829, 841-42 (1978) (First Amendment barred criminal prosecution for disclosing information from a confidential judicial discipline proceeding). Therefore, “if a newspaper lawfully obtains truthful information about a matter of public significance then state officials may not constitutionally punish publication of the information, absent a need to further a state interest of the highest order.” Smith, 443 U.S. at 103; accord Bartnicki, 532 U.S. at 527-28.

In Bartnicki v. Vopper, members of a teachers union sued a radio announcer under state and federal wiretapping laws after he played an unlawfully recorded telephone conversation on the air. The radio show host had received the recording from a third party who himself had received the tape in the mail from an anonymous source. The Supreme Court held that the First Amendment prohibited the recovery of damages against the radio show host for publishing the tape, explaining that “a stranger’s illegal conduct does not suffice to remove the First Amendment shield from speech about a matter of public concern.” Id. at 535. The constitutional principle in Bartnicki and other Supreme Court cases is not limited to traditional forms of media like newspapers and radio broadcasters. See Mary T. Jean v. Massachusetts State Police, 492 F.3d 24 (1st Cir. 2007) (First Amendment barred criminal prosecution for posting illegally recorded video online when recording made by third party, even if knowing receipt of the recording constituted a crime under Massachusetts law).

In Barclays, Judge Cote considered it unimportant that Fly obtained the information it published from other news services that were publishing the firms’ recommendations on the Internet in advance of Fly’s own publication. The court said that "the conduct of third parties is simply of no moment in finding Fly liable for hot-news misappropriation," and "it is not a defense to misappropriation that a Recommendation is already in the public domain by the time Fly reports it." Barclay, slip op. at 61. This may be a faithful application of the INS case itself — recall that INS involved taking facts from publicly available bulletin boards and published newspaper accounts — but INS never considered the First Amendment, so it can’t resolve the issue.

Under Bartnicki and the cases mentioned above, if Fly obtained the information in question through lawful means, then the First Amendment protects its right to publish that information. There is nothing inherently unlawful about Fly reading about a stock recommendation on a newsfeed provided by another news service or participating in a public chat room where Wall Street "rumors" are discussed (accessing a passcode-protected conference call would be another matter). The court says that Fly has engaged in "illegal conduct" by publishing the information it did, Barclays, slip op. at 61, but this label begs the question — that is, whether the state may constitutionally penalize publication of truthful information relating to a matter of public concern that was not obtained in violation of any other applicable laws.

To be sure, the person who originally leaks a firm research report to a news service or chat room participant may violate a legal duty owed to one of the firms, but "a stranger’s illegal conduct" is not sufficient to remove First Amendment protection under Bartnicki. The question is closer for Fly’s pre-lawsuit-era publication of reports received directly from firm employees who violated a duty of loyalty and confidentiality. It might be independently "unlawful" in the constitutional sense to knowingly induce a breach of these duties, but even in the trade secrets sphere this question has not been resolved with any clarity. Furthermore, I’m not aware on anything that would make it "unlawful" for Fly to communicate by email or telephone with firm clients who are willing to convey the substance of the recommendations, though this probably violates the client’s license agreement. Regrettably, the court did not differentiate between Fly’s different information-gathering tactics, and it enjoined publication of information obtained through at least some practices that clearly aren’t "unlawful" in any meaningful sense.

The court might well respond to all this by arguing that the firms’ reports are not facts related to a matter of public concern like ordinary news, but rather "subjective judgments based on complex and imperfect evidence." Id. at 78. There may well be a constitutionally significant distinction between reporting the subjective recommendations generated by these Wall Street firms and objective, external facts that are discovered "out there" in the world. On the other hand, these subjective judgments have objective, real-world consequences, and the announcement of a recommendation is itself a newsworthy event because it may cause a change in a stock’s price. It strikes me as difficult, and potentially hazardous, to try to distinguish between reporting the "subjective" recommendations versus reporting the "objective" fact that they were made, especially when the publication in question looks like this: "EQIX: Equinox initiated with a Buy at FofA/Merrill. Target $110."

The court may have ameliorated some of the First Amendment concerns by clarifying that the scope of its injunction, like the scope of hot news misappropriation, is narrow:

[T]o the extent Fly alters its business and begins to engage in actual analysis of market movements, and refers on occasion after the market opens in New York to one of the Firms’ Recommendations in the context of independent analytical reporting on a significant market movement that has already occurred that same day, such conduct will not run afoul of the injunction.

Id. at 87-88. But, this description of speech activity (the court doesn’t frame it in terms of speech) that won’t be enjoined displays an obvious preference for original/sweat of the brow/"analytical" content-creation over the free transmission of facts and information, which is a lot of what happens on the Internet. This is a preference that hot news doctrine’s anti-free-riding purpose surely calls for, but I don’t believe the First Amendment shares this ideal. (Copyright sure doesn’t. See Feist, 499 U.S. at 359-60.) As I’ll touch on more below, the court’s logic here also has foreboding connotations for news aggregators and others who supposedly "free ride" by transmitting information to others over the Internet without engaging in "independent analytical reporting."

News Aggregators, Bloggers, and the Like

The $75,000 question is what the Barclays case means for other online news aggregators, as well as social media more generally. Will the major newspapers be able to use this case to revive a robust hot news misappropriation doctrine that will kill the news aggregators and lock down facts on the Internet? I have no doubt that AP lawyers are smiling to themselves this week, but I don’t think this decision spells doom for the Internet as we know it.

The bad news for aggregators, bloggers, and those who like to share news is that this is a detailed, thoroughly reasoned (with the First Amendment exception noted above) decision from a respected judge in one of the most prestigious federal district courts in the nation. And, the decision is the product of a full-blown trial, giving it a concreteness and specificity that other, Internet-related hot news decisions, like Associated Press v. All Headline News, 608 F. Supp. 2d 454, 458-61 (S.D.N.Y. 2009), lack. This will give the decision credibility and make it useful in the hands of future judges looking for direction.

Worse, there are moments when reading the opinion where one feels like Judge Cote might as well be talking about news aggregators or bloggers free riding on "original reporting" instead of equity research. The court’s concept of free riding (element iii of the NBA test) certainly sounds like it would apply to news aggregation or acts of curation more generally:

To the extent that Fly adds value through its collection and aggregation of information, however, the value reflected in that act of aggregation does not controvert the fact that Fly expends no effort to produce the Recommendations and does not contribute to the underlying research and analysis process.

Barclays, slip op. at 60. It’s not a huge logical jump to say that all news aggregators are "free-riding" because they "expend no effort" to produce original reporting, and therefore "do not contribute to the underlying [journalistic] process." But this logic vastly understates the social benefit contributed by news aggregators, as well as bloggers who curate and comment on the news without expending effort to create it, and it automatically tilts the scales in favor of content producers at the expense of informational services and commentary, without any real justification.

Also potentially troubling is the court’s willingness to attribute the firms’ disincentive to produce equity research to Fly’s online activities as opposed to global financial meltdown, a willingness we can only hope won’t be reproduced when it comes to evaluating the alleged contribution of news aggregators and social media to newspapers’ current financial plight. Courts need to take a very close look at what is causing newspapers to suffer hard times; increased competition and loss of monopoly advertising rents explain a lot more than headlines and ledes with a link back, but that’s a topic for another day.

In any event, on the all-important fifth element (killing the golden goose), the Barclays case is easily distinguishable because the firms made a good (if not bullet-proof) case that production of high-quality equity research implicates a special need for time-sensitive exclusivity so that firm clients can feel they uniquely benefit from the recommendations and so that these clients can place trades with the firms based on them. Most regular news doesn’t share this rivalrous character, and it may be extremely difficult for newspapers to show that news aggregation or blog commentary ultimately hurts their bottom lines.

As for blogs, Twitter, and other types of social media, Barclays is further distinguishable because of the direct and obvious competition between Fly and the firms, which will be lacking in all but the most unusual cases. When it comes to Google News, which may be a real competitor, the ability of news organizations to opt out using robots.txt makes it extremely difficult to argue that Google is free riding, much less that it is destroying all incentive to engage in original reporting.

Finally, I suspect that the move from the financial sector to the general news sector will brighten and clarify the First Amendment issue discussed above, making it harder for courts to ignore that hot news doctrine plainly contemplates restricting the publication of truthful information on matters of public concern, regardless of how that information is required.

March 09 2010

18:55

Turkish Reporters Unite to Protest YouTube Ban

The Turkish courts banned YouTube in May 2008, and now a new protest campaign launched by the editorial team of the Milliyet newspaper is drawing attention to how long the country has been prevented from using the website.

The initiative, which was was launched on February 19, is not the first campaign of this type. But it's notable because previous protests came from the blogosphere and, as a result, did not receive international coverage. The current ban is the fourth such action by the Turkish courts since 2007; hopefully, this campaign will draw attention to this policy of censorship.

WSJ Piece Sparks Outcry

The editors of Milliyet were inspired to act by a February 16 piece in the Wall Street Journal by David Keyes, a founding member of Cyberdissidents.org. Keyes wrote that "there is nothing European, let alone cultural, about prohibiting citizens from viewing YouTube. Turkey's status as the 2010 European 'Capital of Culture' should be suspended until this ban is repealed."


haberturk.gif

The article received significant pick-up in the Turkish press. A columnist at Haberturk, a national daily, commented that the ban and the resulting situation were an embarrassment. The ban of YouTube was issued on May 5, 2008, by three Ankara magistrate courts who ruled that YouTube had not acquired a certificate of authorization to operate in the country. The columnist at Haberturk wrote that the minister of transportation should do everything in his power to change the relevant law, and then ask YouTube to pay taxes.

In announcing the protest campaign, Milliyet columnist Mehveş Emin said:

Everybody has changed their DNS settings and can access YouTube, just like the Prime Minister does and has said he does. This is why people have become insensitive about this ban. But YouTube is still blocked in Turkey and this affects Turkey's image negatively and this issue needs to be resolved. So as the editorial team of Milliyet Cadde, we agreed to show everyday how many days have passed since the ban.

Following that, on February 17, technology journalists at the daily newspaper Hürriyet published their view on Internet Freedom in Turkey:

We as Turkish technology journalists have stressed the importance of a free Internet over and over again. Hürriyet Daily News & Economic Review did a remarkable job by documenting non-censored computers for the use of the IMF and World Bank delegations during their summit this summer. We said it was not a clever move to try to hide something you are ashamed of, especially if the rest of the world knows about it. The fact that Iran is on the same level as Turkey in terms of free Internet is a shame on the politicians of a free, democratic society. Just as Iran, Turkey would like to create a national search engine and a national Internet, which is an oxymoron to many.

3,700 Websites Blocked

According to Reporters Without Borders' 2009 Press Freedom Index, Turkey is ranked 102 out of 173 countries. In testimony given during a Congressional hearing held on Dec. 3, 2009, Reporters Without Borders noted that, "In 2009, Turkey has experienced a surge in cases of censorship, especially censorship of media that represent minorities [especially the Kurds]."

In Turkey, law No. 5651, "On the fight against online crime," allows a prosecutor to ban access to any website that incites suicide, pedophilia or drug use, or that defames Kemal Atatürk. During 2008, ten web sites, including YouTube, Dailymotion and Google Groups, were blocked by court decisions. Clearly, this law is being applied indiscriminately and as a tool to suppress free speech.

"In its current form, Law 5651, commonly known as the Internet Law of Turkey, not only limits freedom of expression, but severely restricts citizens' right to access information," said Milos Haraszti, media freedom monitor for the Organization for Security and Cooperation in Europe (OSCE), in a January Reuters story.

He said that Turkey, a European Union candidate, was blocking access to 3,700 Internet sites because Ankara's Internet law was "too broad and too subject to political interests."

Turkish newspapers also reported that in April 2009 the army sorted 292 Turkish-language websites and 138 foreign-language sites into categories such as "separatist," "in favour of the EU," "Islamist." The list included a number of human rights websites, as well as newspapers such as The Independent and the New York Times.

The question now is whether Turkey's online censorship will land it on the list of "Internet Enemies" that we at Reporters Without Borders will publish this Friday":http://www.rsf.org/World-Day-Against-Cyber-Censorship.html -- and how its Internet policies will impact its EU membership.

Clothilde Le Coz has been working for Reporters Without Borders in Paris since 2007. She is now the Washington director for this organization, helping to promote press freedom and free speech around the world. In Paris, she was in charge of the Internet Freedom desk and worked especially on China, Iran, Egypt and Thailand. During the time she spent in Paris, she was also updating the "Handbook for Bloggers and Cyberdissidents," published in 2005. Her role is now to get the message out for readers and politicians to be aware of the constant threat journalists are submitted to in many countries.

This is a summary. Visit our site for the full post ».

Older posts are this way If this message doesn't go away, click anywhere on the page to continue loading posts.
Could not load more posts
Maybe Soup is currently being updated? I'll try again automatically in a few seconds...
Just a second, loading more posts...
You've reached the end.

Don't be the product, buy the product!

Schweinderl