Is Craigslist a common carrier?

The news today is that Craigslist has, without explanation, stopped running ads for adult services.  This follows a letter from 17 attorneys general asking Craigslist to remove their adult services section, something that the states cannot legally require Craigslist to do.  In the words of Ryan Calo, a senior research fellow at Stanford Law School's Center for Internet and Society (as quoted in today's New York Times) “What’s happened here is the states’ attorneys general, having failed to win in court and in litigation, have decided to revisit this in the court of public opinion, and in the court of public opinion, they have been much more successful.”

Why should the public support Craigslist?  Because of the principle that internet services companies cannot be made responsible for the speech of their users.  I think that we all agree that Google, Yahoo and Microsoft should not be held accountable for criminal content sent by private users of their email services.  What complicates the matter is that web services are varied.  Craigslist should not, for example, be allowed to create a category that is limited to illegal services (such as murder for hire).  However, most of what gets posted in adult services is legal, and illegal ads are posted in other sections.  In fact, legal precedent here concerned ads for housing.  In Chicago Lawyers' Committee For Civil Rights Under Law v. Craigslist the judge wrote:

Using the remarkably candid postings on Craigslist, the Lawyers' Committee can identify many targets to investigate. It can dispatch testers and collect damages from any landlord or owner who engages in discrimination. .... It can assemble a list of names to send to the Attorney General for prosecution. But ... it cannot sue the messenger just because the message reveals a third-party's plan to engage in unlawful discrimination

(quoted from WebProNews, which has links to the original).

Clearly, people are using the adult services section of Craigslist to commit crimes.  Those criminals should be stopped.  In my opinion, the attorneys general should do their job by using the list as a tool to investigate rather than trying to force Craigslist, and, by extension, all internet service providers, into the role of censor.

About that mosque: we all have the right to practice our religion

When George W. Bush was asked about what might have motivated the terrorists who flew their planes into the World Trade Towers on September 11, 2001 he said that "they hate freedom."  Now that same act is being invoked by Americans who oppose the construction of Park51, Americans who appear to hate freedom.  At least these Americans appear to not understand what freedom is and how much it matters.  I am sympathetic to the view that placing a mosque close to the site where Islamic terrorists committed such a heinous act might be offensive to some, and I agree that everything would have been simpler if a different site had been chosen.

But that didn't happen.  Instead, a loud and very public debate has turned this into an argument about religious freedom.  In my opinion, that debate has been framed in such a way that anyone who cares about freedom must take a stand in favor of allowing the Park51 cultural center to be built where Imam Feisal Abdul Rauf and his organization would like it to be built.  Mayor Bloomberg and President Obama have spoken eloquently on this subject.  It remains unclear what will ultimately happen.  My hope is that this episode will eventually be remembered as a civics lesson for people who profess to know better.

Privacy on the web - does everything online last forever?

Last week's New York Times magazine ran an excellent article about the issue of internet reputation ("The End of Forgetting").  The author, Jeffrey Rosen, is a law professor at George Washington University and a frequent contributor to the Times magazine. The article tells some outrageous stories about people who suffered because of information about them online. It also discusses some possible technological solutions.  I was especially intrigued by the idea of information that expires.  An encrypted form is posted, and after a specified date, that source file is no longer readable.  Of course, if someone can see it (before it disappears), then there is going to be some way that they can make an unencrypted copy, but at least the original will be gone.

I tend to agree with the conclusions of the author:

Our character, ultimately, can’t be judged by strangers on the basis of our Facebook or Google profiles; it can be judged by only those who know us and have time to evaluate our strengths and weaknesses, face to face and in context, with insight and understanding. In the meantime, as all of us stumble over the challenges of living in a world without forgetting, we need to learn new forms of empathy, new ways of defining ourselves without reference to what others say about us and new ways of forgiving one another for the digital trails that will follow us forever.

However, I would also like to point out that internet reputation cuts both ways and those who use online data against others may damage their own reputations.  This article cites an example in which Millersville University School of Education denied a teaching degree on completely inappropriate grounds.  Ultimately, that sort of intolerance will damage the reputation of the intolerant.  I would argue that Millersville is already hurting.

Another example is provided by the recent story about Shirley Sherrod, who discovered that there is little privacy in today's world when an excerpt from a videotape of her speech to a local NAACP chapter was posted by Andrew Brietbart (it's still there).  After a highly publicized episode in which it was revealed that the tape was presented out of context, and Ms. Sherrod was fired and rehired, Shirly Sherrod came out looking pretty good, and the reputation most damaged by the entire incident is that of Andrew Brietbart.  In a world where nothing is forgotten and much is seen, mudslingers are easily recognized by the mud on their hands.

The Internet and Steady Vigilance

The U.S. Constitution is a living document.  It has to be, because things like the internet were not present when the original document was written.  How the first amendment (and rights generally) apply to the modern world is something that must develop over time.  Eternal vigilance is required because the world is changing, and threats to liberty come from new directions.  In any case, I am interested in free speech around the world, not only in the United States.

The situation here is explained well in "Am I Making Myself Clear: A Scientists Guide to Talking to the Public" (by New York Times writer Cornelia Dean Amazon).

Beginning in the 1960s, the Supreme Court expanded the First Amendment's prohibition of government interference with the news media.  Far from merely prohibiting government "prior restraint" — blocking journalists from giving their news — the Court embraced the idea that free and robust news media were crucial for democracy.  As a result, it protected news media from libel suits unless journalists' actions were dishonest or flagrantly negligent.

The result is a media environment unique in the world, one in which the press is unusually free.  Libel laws are construed to give responsible journalists a pass if, through an honest mistake, they defame a government official or other person involved, willingly or not, in an issue of public importance.  The Court reasoned that penalizing journalists for honest mistakes would stifle their reporting.  

Cornelia Dean's book is not about freedom of the press (it is about science writing), but the synopsis I quoted is a very nice summary.  One point that it raises is that rights are in conflict.  She continues

And so, in the United States, there is no national union of journalists to which we must belong, no licensing authority, no nothing.  In effect, people are journalists if they declare themselves to be journalists.¹ As a journalist, I embrace this press freedom. But it comes at a price. Innocent people who suffer from journalist's innocent mistakes may have little recourse. The absence of licensing requirements for reporters means that people can report on whatever they want, whether they know anything about it or not. The result can be incompetent reporting.

To what extent do press freedoms extend citizen bloggers? (Her footnote is to Scott Gant's "We're All Journalists Now: The Transformation of the Press and Reshaping of the Law in the Internet Age").  To what extent is privacy necessary to free speech on the internet?  Do the biggest threats to internet freedom come from governments?  From internet service providers?  From other corporations?  The internet has replaced the press, but it is not the same thing.  I am interested in how this plays out over time.

Maryland is bringing felony charges for videotaping

From the Kojo Nnamdi show on WAMU (Wednesday):

The state of Maryland has one of the most rigid laws prohibiting wiretapping. But advocates say those rules need to be rewritten in an era of cellphone cameras and YouTube. And they point to a growing list of controversial news stories and viral videos involving police actions in the Old Line State. We'll look at the strengths and limitations of the current rules, and whether recording devices are changing police practices.

The amazing thing is that the Maryland police have an exception that allows the them to make a videotape, but citizens cannot.  The Maryland state police did not participate in the show, but Joseph Cassilly, the state's attorney for Harford County, did.  Kojo and his other guests (David Rittgers of the CATO Institute and David Rocah from the ACLU) agree that Maryland is overreaching.  Maryland's interpretation of the law would permit anyone whose conversations are recorded and put up on YouTube to charge the videotaper with a felony (if they could argue that they had a reasonable expectation of privacy).

Do you think that this was a private conversation?

Companies that use lawsuits to stifle criticism

The New York Times had an interesting article this morning illustrating how corporations can use their deep pockets to stifle criticism ("Venting Online, Consumer Can Find Themselves in Court").  Apparently, T&J Towing, of Kalamazoo, Michigan, is abusing the legal system, suing a consumer (Justin Kurtz) for $750,000 in damages after he complained online about mistreatment (on Facebook).  This sort of thing is known as a strategic lawsuit against public participation, or Slapp.  It sounds like T&J Towing has some sort of arrangement whereby they can tow cars that they think are violating some law, without any hearing or judgement by a disinterested party.  They charge the owner of the towed car for the towing, and it doesn't matter if the car was legally parked ("The towing company’s lawyer said that it was justified in removing Mr. Kurtz’s car because the permit was not visible."  I wonder if "not visible" means that the tow truck driver did not bother to check.).  The point here is that companies have a lot more money than individuals.  They can and do use frivolous lawsuits to punish critics. 


I suspect that the city of Kalamazoo has the power to revoke T&J Towing's authority to tow.  After all, it's most often municipal codes that are being enforced.  The consistent stories I'm seeing on the Facebook site make me think that the appropriate city officials will have to respond to their citizens and T&J Towing will probably be shut down.


This case illustrates the power of companies to abuse the legal system and stifle criticism.  I am interested in how it turns out.  It has broader implications affecting the rights of consumers to honestly share their experiences online.