First Amendment Coalition » blogs

Illinois case greater threat to bloggers seeking protection of shield laws

donal brown — Tue, 31 Jan 2012 19:01:51 +0000

The Oregon case denying a blogger protection under the state;’s shield is of minor concern writes Eric P. Robinson for the Citizen Media Law Project. A greater threat lies in a recent decision in Illinois.

In that case the Cook County court ruled that an online news source that posted blogs on technology did not qualify as a “news medium” and did not therefore enjoy Illinois reporter’s privilege. -db

From a commentary for the Citizen Media Law Project, January 26, 2012, by Eric P. Robinson.

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Citizens Media Law Project explains decision in Oregon blogger’s defamation lawsuit

donal brown — Thu, 15 Dec 2011 19:05:13 +0000

Commentary about the decision a federal judge made in a defamation suit about a blogger not protected by the Oregon shield law is based on an erroneous reading of the decision, writes Eric P. Robinson for the Citizens Media Law Project.

“He did not deny Cox the protection of the shield law primarily because she is a blogger, but because she tried to use the shield law in a way that courts have rejected,” writes Robinson.

From a commentary for the Citizens Media Law Project, December 12, 2011, by Eric P. Robinson.

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Opinion: Google and others can perform a great public service by identifying online ‘journalism’

donal brown — Thu, 08 Sep 2011 19:42:40 +0000

Writing in ZDNet, Sam Diaz says that Google, Facebook and Twitter have the information that could enable them with the help of the analysis of real journalists to identify which blog sites, tweets and news outlets should be labeled “journalism.” Diaz says “news” is different from “journalism” and the latter must be identified and labeled as such because of its value. “Journalism is about fairness, accuracy, objectivity and responsible reporting, as well as values, standards and ethics,” says Diaz.

From a commentary in ZDNet, September 6, 2011, by Sam Diaz.

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Ferment of new sportswriting invading web

donal brown — Wed, 25 May 2011 23:39:04 +0000

Writing for the Nieman Journalism Lab at Harvard University, Tim Carmody describes current sports reporting on the internet as innovative and exciting. He notes a number of recent aggregations, blogs and other presentations including the literary that allow the reader faster, more convenient access and promise an even richer involvement in the sports scene.

Carmody writes about the changes, “As Rob Neyer wrote when he moved from ESPN to SB Nation, the new ethos in sports journalism, as elsewhere, seems to be breaking down the distinction between “us” and “them.” And this is a distinction that you can interpret much more broadly than one between writers and readers, pros and amateurs, sportswriting and non-sports writing. When the walls tumble, they tumble everywhere. My bet is that this will be good for everyone — not just sports fans, sportswriters, and smart media companies, but everyone looking for new ways to read and write smart material on the web.” -db

From a commentary the Nieman Journalism Lab, May 23, 2011, by Tim Carmody

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Discovery Rule for Libel Doesn’t Apply to Blogs, Says Federal Judge

SusanaMontes — Fri, 06 Aug 2010 17:28:28 +0000

Aviation lawyer and seasoned pilot Arthur Alan Wolk knows quite a bit about the stratosphere and the troposphere, but he may have learned something new this week about the blogosphere when a federal judge tossed out his libel suit against the bloggers at Overlawyered.com.

The National Law Journal

August 6, 2010

By Shannon P. Duffy

As U.S. District Judge Mary A. McLaughlin sees it, a blog is legally the same as any other “mass media,” meaning that any libel lawsuit filed against a blog in Pennsylvania must make its way to court within one year.

Wolk was hoping for a break on the strict time limit. His lawyers — Paul R. Rosen and Andrew J. DeFalco of Spector Gadon & Rosen — argued that the “discovery rule” should apply to toll the statute of limitations until the target of an allegedly libelous blog entry discovers it.

But McLaughlin found that blogs, by virtue of publishing on the Internet, qualify as mass media that simply cannot be subjected to the discovery rule.

“The court is not aware of any case in which the discovery rule has been applied to postpone the accrual of a cause of action based upon the publication of a defamatory statement contained in a book or newspaper or other mass medium,” McLaughlin wrote in her nine-page opinion in Wolk v. Olson.

McLaughlin said she followed the lead of several of her colleagues on the Eastern District of Pennsylvania bench, as well as numerous courts around the country, in holding that “as a matter of law, the discovery rule does not apply to toll the statute of limitations for mass-media defamation.”

In court papers, Wolk said he first learned of the existence of the allegedly defamatory article on Overlawyered when he was advised at a seminar on client relations in early 2009 to perform a Google search of his own name.

It was only then, Wolk claims, that he found the April 2007 blog entry by Overlawyered’s Theodore Frank that allegedly included false allegations about Wolk’s handling of a case in Georgia.

“The discovery rule in Pennsylvania is a rule of statutory construction applicable to all cases,” Rosen and DeFalco argued.

But Overlawyered’s lawyers — Michael N. Onufrak and Siobhan K. Cole of White & Williams — argued that the discovery rule simply cannot apply to any defamation suit that stems from a “published” statement.

McLaughlin agreed and found that Rosen and DeFalco were asking the court to stretch the discovery rule beyond its intended scope.

“Not all cases are worthy of the discovery rule. Worthy cases are those pertaining to hard-to-discern injuries,” McLaughlin wrote.

“If the rule is intended for hard-to-discern injuries, it would be at odds with a cause of action based upon a defamatory statement disseminated through a mass medium, like a website, and received by tens of thousands of readers,” McLaughlin wrote.

Applying the discovery rule in Wolk’s case would also “undermine the purpose” of the statute of limitations, McLaughlin found.

“If a plaintiff may bring a person into court after a limitations period has expired simply by invoking the discovery rule, and if a court is bound from dismissing the claim no matter how public or ancient the injury may be, then the discovery rule will have nullified the stability and security that the statute of limitations aims to protect,” McLaughlin wrote.

McLaughlin cited a string of decisions that followed the same logic, including Schweihs v. Burdick, a 1996 decision in which the 7th U.S. Circuit Court of Appeals adopted a “mass-media exception” to the discovery rule, explaining that the rule only applies to defamation “in situations where the defamatory material is published in a manner likely to be concealed from the plaintiff, such as credit reports or confidential memoranda.”

Wolk has already filed a notice of appeal to challenge McLaughlin’s ruling.

Rosen said he believed that McLaughlin had erred by failing to apply recent Pennsylvania Supreme Court decisions that say the discovery rule tolls the statute of limitations until an “awakening event.”

The Internet, Rosen said, poses “unique challenges” for the courts in the field of defamation.

“Unlike mass media print defamation claims, where the publication is pervasive for a short time, but soon becomes yesterday’s news, the Internet is a different animal,” Rosen said.

“In cases such as Mr. Wolk’s, involving a blog that is relatively obscure, but which published a false statement that may appear on any Google type search, the discovery rule is of particular importance,” Rosen said.

Onufrak said that if his clients had not won the case on statute-of-limitations grounds, he was confident that they would have won on First Amendment grounds because the blog entry was not defamatory and would have been considered protected opinion.

Olympic athletes allowed to twitter

donal brown — Thu, 11 Feb 2010 17:10:37 +0000

Despite the International Olympic Committee’s confusion about blogs and journalism, it appears that Olympic athletes will be allowed much greater freedom to tweet from the games than previously thought. -db

Citizen Media Law Project

Commentary
February 9, 2010
By Arthur Bright

Rejoice, all ye Olympian fans, the International Olympic Committee (“IOC”) has said that its athletes can use Twitter!

Apparently there’s been some confusion among Olympic athletes as to whether they were allowed to “tweet,” as the kids call it. Wired notes that Lindsey Vonn, US Olympic skier, told her some-35,000 Twitter followers that she wouldn’t be allowed to post during the Olympics proper, due to the IOC’s blogging rules. (Judging by Vonn’s Facebook page, to which her website redirects, that might have been hard for her; she seems to be a rather prolific poster.)

Well, the IOC has since itself tweeted that Twittering (Tweeting?) is an acceptable activity for athletes, “as long as it is about your own personal experience at the Games.”

The IOC tweet includes a link to the IOC Blogging Guidelines (pdf). Taking the IOC at its “tweet,” apparently so long as the athletes follow the rules in this document, they’ll be okay.

The rules are still pretty strict, of course. Some of the rules are obvious—no advertising, no exclusivity, no using the word “Olympic” in your website’s name. But also verboten are the use of any sound or video of the Games, and photos are only acceptable where the athlete is pictured and not involved in any “sporting action” or official ceremonies, including medal presentations. And athletes can’t use the Olympic symbol on their blogs. (This strikes me as problematic in combination with the photos rule. Does the athlete need to photoshop out any logos present before they post a photo?)

Of course, there are some logical flaws in the rules too. The Guidelines specifically distinguish “blogs” from “journalism,” which strikes me as more than a bit odd. Bob Condron, the Director of Media Services for the US Olympic Committee, told Wired that the blogging athlete “can’t act as a journalist” if she’s not one. “You need to do things in a first person way.”

Since when are journalists unable to report in a first-person fashion? Sure, a great deal of the news is presented in print and on TV in a third-person narrative, with the reporter trying to stay out of sight as much as possible. But plenty of journalists use a first-person presentation to tell a story. And “blogs” are really just a medium, whereas journalism is more a method of writing. There’s nothing inherently contradictory about a “journalistic blog.” But it’s unclear if the IOC would be able to grasp that.

Still, these sorts of borderline issues aren’t apt to come up, considering that your average Olympic twitter is probably more focused on honing their athletic prowess than their journalistic chops. The gist of the IOC rules is that if an athlete wants to write 140 characters about their experiences at the games, she can. So rejoice, Lindsey Vonn, you’re good to go.

Arthur Bright is a third-year law student at the Boston University School of Law and a former CMLP Legal Intern.

Stifling criticism: Ralph Lauren concedes on attempted copyright takedown

donal brown — Mon, 12 Oct 2009 21:25:15 +0000

A blog called Boing Boing won a battle against Ralph Lauren that began when it attacked a Ralph Lauren ad that it felt presented distorted images of women’s bodies, reprinting the ad at issue. Lauren countered with accusations that the blog violated copyright in printing the ad which contained a photo and sent DMCA a takedown notice, but Boding Boing fought the notice, forcing Lauren to back down. -DB

Citizen Media Law Project
Commentary
October 9, 2009
By Arthur Bright

File this one under Destination Media Access Control (DMCA) don’ts:

Last month, the folks at Photoshop Disasters and Boing Boing noticed that Ralph Lauren had done some rather horrific photoshopping of a fashion model in one of its ads. Both sites mocked the horribleness with brief, but clearly critical, comments.

“Make her head bigger than her pelvis! Do it!” wrote Photoshop Disasters.

“Dude, her head’s bigger than her pelvis,” gasped Boing Boing.

Naturally, both blogs saw a torrent of comments of people laughing, pointing, and noting that this kind of photoshopping is exactly the sort of thing that drives women’s self-esteem down the tubes. But that was about as much publicity as the posts got.

Enter an apparently cranky Ralph Lauren. Claiming that the blogs infringed on its copyright in the hideously doctored photo (and presumably also fearing that the label would see a backlash for promoting emaciation chic even more blatantly than the fashion industry’s norm), Ralph Lauren sent DMCA takedown notices to the hosts of both blogs. (You can see a copy of the notice sent to Boing Boing at the Berkman Center’s own Chilling Effects Clearinghouse.)

Photoshop Disasters’ host, Blogspot, caved automatically, as is sadly the norm. (The post is still available through Google’s cache, fortunately.) But Boing Boing and its ISP, Priority Colo, held firm, arguing that posting the photo is protected as fair use.

I certainly agree with them. Breaking down the four fair use factors of Section 107 of the Copyright Act, they seems to weigh heavily in favor of Boing Boing.

The first two factors strongly support a fair use defense. The purpose of the post was clearly, clearly criticism, so we’ve got a transformative use, which greatly favors Boing Boing. The photo, as a commercial depiction of goods, is arguably a more factual sort of work (artificial emaciation aside), which also weighs in favor of fair use.

The second pair of factors are a little trickier, but ultimately I think Boing Boing wins on them as well. While the blog did copy the entirety of the copyrighted work, which is generally a strike against fair use, the work here is a photo. Photos just don’t lend themselves to “excerpts” the way text and video do. And given the nature of its commentary, Boing Boing had to copy the entire photo in order to make its point intelligible, so I think they’re okay here.

And as for the “effects on the market” factor, yes, the blog posts might harm Ralph Lauren’s sales. But as Chilling Effects’ Wendy Seltzer told Boing Boing, “If criticism diminishes its effectiveness, that’s different from the market substitution copyright protects against.” In other words, if Boing Boing hurts Ralph Lauren’s market by pointing out Ralph Lauren photoshops its models to look like Jack Pumpkinhead, tough noogies.

So, confident in its fair use claim, Boing Boing posted a promise to Ralph Lauren that no, it would not takedown the scary-stick-lady photo. Instead, it would mock Ralph Lauren mercilessly.

Copyright law doesn’t give you the right to threaten your critics for pointing out the problems with your offerings. You should know better. And every time you threaten to sue us over stuff like this, we will:

a) Reproduce the original criticism, making damned sure that all our readers get a good, long look at it, and;

b) Publish your spurious legal threat along with copious mockery, so that it becomes highly ranked in search engines where other people you threaten can find it and take heart; and

c) Offer nourishing soup and sandwiches to your models.

The combination of threatened legal action and Boing Boing’s righteous recalcitrance has turned this into just the sort of negative publicity bonanza that Ralph Lauren almost certainly hoped to avoid by filing the DMCA takedown. The legal foofaraw drew the attention of ABC News, FOX News, The Times of London, Forbes, and various other mainstream news agencies who all, of course, reposted the freakish photo. And the blogosphere was all over it too, including Jezebel, The Register, Techdirt, The Huffington Post, and a host of others. (Reproducing the photograph for purposes of news reporting and legal commentary is also a highly transformative use, and the other considerations discussed above largely apply in this context as well.)

With the photo now on full display across the media world, Ralph Lauren had to fess up to the photoshopping. And indeed it did, reports Extra.

On Thursday, Polo Ralph Lauren released the following statement about the retouched ad: “For over 42 years we have built a brand based on quality and integrity. After further investigation, we have learned that we are responsible for the poor imaging and retouching that resulted in a very distorted image of a woman’s body. We have addressed the problem and going forward will take every precaution to ensure that the caliber of our artwork represents our brand appropriately.”

Sadly, they have yet to apologize for their frivolous DMCA takedown requests, says Boing Boing.

But on the whole, I think Ralph Lauren got just what it deserved. So kudos to you, Ralph Lauren! Through your hamhanded legal threats, you have put the spotlight on the designing world’s self-destructive vision of women while simultaneously highlighting the foolishness of trying to silence valid, legally protected criticism. Here’s to a job well done!

Arthur Bright is a third-year law student at the Boston University School of Law and a former CMLP Legal Intern.

New Defense Department policy may allow troops to tweet and blog

donal brown — Wed, 30 Sep 2009 17:43:33 +0000

In the face of a raft of military prohibitions against social networks. a new draft policy recognizes the power of the networks and seeks to balance the risks with the gains. -DB

Wired

Commentary
September 29, 2009
By Noah Shachtman

The Defense Department may allow troops and military employees to freely access social networks — if a draft policy circulating around the Pentagon gets approved, that is.

For years, the armed services have put in place a series of confusing, overlapping policies for using sites like Twitter and Facebook. But a draft memo, obtained by Nextgov, allows members of the military to use Defense Department networks to get on the social media sites — as well as on “e-mail, instant messaging and discussion forums.”

The new policy “addresses important changes in the way the Department of Defense communicates and shares information on the internet,” writes Deputy Defense Secretary William Lynn. “This policy recognizes that emerging internet-based capabilities offer both opportunities and risks that need to be balanced in ways that provide an information advantage for our people and mission partners.”

Over the summer, it looked like access to Web 2.0 sites might be banned altogether in the military. U.S. Strategic Command told the rest of the Defense Department it was considering a near-total block on social media, because the sites have become sieves for Trojans and spam. Not long afterward, the Marine Corps banned Web 2.0 sites from its networks. The moves only added to the military’s Web 2.0 confusion. Months earlier, the Army ordered all U.S. bases to provide access to social media. The Chairman of the Joint Chiefs of Staff set up a Twitter account, which today has more than 7,000 followers.

That prompted Defense Secretary Robert Gates to order the first Department-wide review of how the American military uses the sites. It’s a review that’s not yet complete, cautions Pentagon social media czar Price Floyd. “No decisions have been made,” he tells Danger Room. “The memo hasn’t gone to the leadership yet.”

But a decision is expected shortly, he added — within a matter of weeks. And if Secretary Gates and the Pentagon’s poobahs approve the draft memo, service members finally be allowed to tweet and blog, with the full backing of the U.S. military.

California case: Middle way may create burdens for those trying to unmask anonymous commenters

donal brown — Thu, 17 Sep 2009 19:12:29 +0000

The Assistant Director of the Citizen Media Law Project writes that it’s difficult to decide whether a judge’s creative solution in a case involving anonymous commenters is praiseworthy and likens the ruling to Solomon’s “splitting the baby.” -DB

Citizen Media Law Project
Analysis
September 16, 2009
By Sam Bayard

It’s amazing how many times you can hear a phrase without really understanding it. Take “splitting the baby” for instance. Excuse my ignorance, but I’d always thought it had a more-or-less neutral connotation, suggesting a pragmatic compromise to a question or problem. But consider the Solomonic origins of the phrase, and you get quite a different picture.

Split the baby and you kill it, and nobody likes a dead baby. So, I have to apologize up front for the title of this post — I haven’t decided yet whether the approach to unmasking online commenters described below deserves praise or blame, but I couldn’t resist this awesome wikicommons reproduction of Guissepe Cades’ Judgment of Solomon.

The Sacramento Bee and the Chronicle of Higher Education point us to a new online anonymity case from California. Last week, Superior Court Judge Shelleyanne Chang ruled (scroll to Item 7) on blogger David Greenwald’s motion to quash a subpoena seeking the identity of commenters to his blog, the People’s Vanguard of Davis. Taking an approach I’ve never seen before, the court — ahem — split the baby.

Judge Chang decided that former UC Davis police officer Calvin Chang (no relation to the judge) cannot obtain directly any identifying information for the commenters in question, but he can employ a third-party expert to determine whether the comments were posted by specific UC Davis personnel whose names Chang will provide in advance.

Here’s the back story: This summer, Mr. Chang’s attorney served the subpoena on Google, Greenwald’s former blog host, as part of Chang’s employment discrimination and breach of contract action against the UC Davis. Greenwald published blog entries about Chang’s lawsuit back in February 2009, a few days after the suit was filed, and several readers posted negative comments about Chang and his case.

The subpoena seeks identifying information for seven anonymous and pseudonymous comments. Chang maintains that the individuals who left these comments are “managing agents” of the university, and that the comments themselves constitute evidence of breach of a previous settlement agreement by the university. Google informed Greenwald of the subpoena, and he challenged it, arguing that the First Amendment protects the rights of his commenters to speak anonymously and that the information is not relevant to Chang’s suit against the university.

The court largely agreed with Greenwald’s arguments, finding that Chang “has not made the requisite prima facie showing of a valid libel claim against [the commenters] in order to justify the requested disclosure of their personal information,” apparently in a subtle nod to Krinsky v. Doe 6, 72 Cal. Rptr. 3d 231 (Cal. Ct. App. 2008), a California appellate decision Greenwald relied on heavily. The court went on to explain that Chang’s opposition papers “nowhere showed or attempted to show that the comments posted to the blog were ‘assertions of fact which are provably false’ and not non-actionable opinions, as required by Paterno v. Superior Court (Ampersand Publishing) (2008) 163 Cal. App.4th 1342, 1349-1350.” The court therefore concluded that Chang failed to justify the disclosure of the posters’ identity in order to proceed with libel claims against them.

This reasoning is a little awkward given the posture of the subpoena. The court is not dealing with a situation like Liskula Cohen’s effort to unmask the Skanks in NYC blogger (granted she didn’t end up suing), the Ottinger case I blogged about earlier this week, or the TCI Journal subpoena. Chang doesn’t appear overly concerned with suing the commenters for libel; his real concern is using their comments as evidence in his case against the university.

Sensing this mismatch, the court recognized that “if the comments posted on the blog were authored by ‘managing agents’ of the university, they would constitute evidence relevant to existing claims against the university.” Here, the plaintiff did much better. The court found that Chang “identified specific reasons” to believe that the postings were made by university personnel because of “the use of unique terms” and “reference to information not generally known.”

Still, the court worried about stripping unrelated Internet speakers of their anonymity without justification and therefore imposed the following conditions on Chang’s discovery of the identity of the posters to the blog:

At his own expense, Chang will retain an independent third party to perform an IP address trace of the sources of the comments posted to the blog;
Chang will provide the third party with the names of the specific university personnel believed to have posted the comments;
The third party will be the “exclusive recipient” of records and information produced by Google or Greenwald in response to the subpoena or similar subpoenas seeking the identify of the commenters.
If the third party determines that any of the comments were posted by the specific university personnel identified in advance by Chang, then he/she will release the associated records and information to the parties; and
If the third party determines that any of the postings were not authored by someone on Chang’s list, then he/she will be prohibited from releasing any records or information relating to the posting(s) or individual(s).

Right now, I’m still not sure what to make of this middle path. It seems a reasonable enough way to make sure that Greenwald’s commenters are not unmasked without proper justification. Heck, given that Chang came forward with specific reasons to suggest university personnel wrote the posts, the court may have been justified in ordering immediate and full disclosure under the test used by some other courts when faced with subpoenas seeking the identity of anonymous Internet users for evidentiary purposes in ongoing litigation.

See, e.g. Enterline v. Pocono Medical Ctr., 2008 WL 5192386, at *5 (M.D. Pa. Dec. 11, 2008) (considering whether subpoena is in good faith, whether it seeks information relevant to a core claim or defense, and whether the information is available elsewhere); Doe v. 2TheMart.com, 140 F. Supp. 2d 1088, 1095 (W.D. Wash. 2001) (same).

If that’s the case, then adding this extra level of protection is a boon to the anonymous speakers involved. On the other hand, the court’s procedure sounds kind of expensive and messy, and it involves a third party handling potentially sensitive information with relatively little oversight from the court.

Do any of our fair readers have a view on this one way or the other?

Iran gains edge in diet wars as blogger loses weight in jail

donal brown — Wed, 16 Sep 2009 18:59:40 +0000

According to the Iranian government, a leading cleric-blogger has attained self-improvement by slimming down in prison. Says CMLP blogger Andrew Moshirnia, this success may cause a stampede in the U.S. to emulate Iranian weight-loss practices. -DB

Citizen Media Law Project
Commentary
September 15, 2009
By Andrew Moshirnia

A little while back, I wrote about the Iranian persecution of bloggers and opponents of Mahmoud Ahmadinejad. There is so much evidence of this systematic assault on liberty that it was difficult to pick just one Exhibit A. I finally settled on the before and after pictures of Mohmmad Ali Abtahi, which showcased the effects of torture on a former vice president and leading cleric-blogger. The image of a formerly rotund, sanguine Abtahi transformed into that of a haggard immate seemed the easiest way to confirm allegations of mistreatment of political detainees.

No so fast, said Abtahi’s jailers. According to the New York Times, Ali Akbar Javanfekr, President Ahmadinejad’s adviser for press affairs, said that these pictures point not to torture but to self-improvement derived from deep contemplation. Javanfekr, apparently with a straight face, argued that “[i]t is only natural for a person who has gained an excessive amount of weight to come to his senses in prison that being overweight is not good for your mental or physical health.”

The Iranian authorities have truly outdone themselves this time. I dare you to come up with a more asinine excuse. Oh, and be sure to utter that fable against the backdrop of allegations of widespread detainee rape.

But again, maybe, just maybe, this laughable excuse will cause the United States to refocus attention on the crisis in Iran. (I had formerly hoped that the show trials would do just that.) While it’s true that the advent of blogging in Iran has given a platform for those individuals abused by the regime, this has not lessened the importance of mainstream media coverage. An all-important interest-grabbing “hook” is needed to direct traffic to those blogs. Well, can you think of anything that gets more attention onnewsstands than new weight-loss techniques?

Think of it, Cosmo can tout the new Abtahi diet (“Allow our skilled therapists distract you from Hunger!”) or the Evin plan. I can see the infomercials for weigh-loss electrodes now. (“Apply directly to the testicles and see the pounds melt away!”)

Come on Daily Show, you did an excellent job of interviewing Abtahi before his arrest. I think it only fair that you call attention to his miraculous new diet plan. The nation’s obesity problem will be a thing of the past — all we need are a gag, some pliers, and a willingness to explore the human condition.

Andrew Moshirnia is a second-year law student at Harvard Law School.

UC Davis case: Judge suggests avenue to determine identity of anonymous bloggers

donal brown — Tue, 15 Sep 2009 22:16:47 +0000

Although a Sacramento judge ruled substantially in favor of a blog operator who was trying to keep secret the identities of his bloggers, she also said the plaintiff in the case could hire someone to conduct a search for the identities. -DB

The Sacramento Bee
September 14, 2009
By Hudson Sangree

Those anonymous comments you’ve been posting online might not be as anonymous as you think.

Last week, a Sacramento judge opened a small window of opportunity for a plaintiff in a lawsuit to discover the identities of individuals who had posted derogatory comments about him on a Davis blog.

The case mirrors others across the nation as courts struggle to balance anonymous speech online with the interests of litigants seeking information.

Many Internet user agreements warn bloggers that they aren’t guaranteed anonymity. And more and more, those who file lawsuits are using the legal system to unmask attackers.

Online anonymity is “a speed bump that’s relatively easy to clear for people with legitimate causes of action,” said Matt Zimmerman, an attorney with the Electronic Frontier Foundation.

The San Francisco group is a leading advocate for anonymous speech on the Internet and is currently defending bloggers in Chicago against a subpoena by developers over comments against a controversial project.

A recent high-profile case in New York also highlighted the issue. Rosemary Port is suing Google after it revealed her as the anonymous blogger behind “Skanks in NYC,” a site attacking model Liskula Cohen. A judge ordered Google to disclose Port’s identity.

In the Sacramento case, a former police officer with the University of California, Davis, filed a lawsuit against the UC regents in February, claiming discrimination and breach of a settlement agreement in a prior lawsuit.

David Greenwald, who operates a blog called The People’s Vanguard of Davis, wrote about the legal dispute, and his readers weighed in with comments.

Some of those comments, posted anonymously and under a pseudonym, caught the attention of the former UC police officer, Calvin Chang, and his attorney, Anthony Luti.

They believed UC insiders had posted the comments and wanted to find out who they were. In July, Luti served a subpoena on Google, the Vanguard’s former host, demanding names, e-mail addresses and log-in information.

Google informed Greenwald, and his lawyer, Donald Mooney, filed a motion to quash the subpoena. He argued the information was protected by the First Amendment.

In a tentative ruling issued Tuesday in Sacramento Superior Court, Judge Shelleyanne Chang (no relation to the plaintiff) ruled mainly in Greenwald’s favor.

But the judge said the plaintiff could pay an independent third party to perform an Internet address trace to determine if those who posted comments were the people he thought they were. Only then could their information be revealed, she ruled.

“The court agrees that if the comments posted on the blog were authored by ‘managing agents’ of the university, they would constitute evidence relevant to the existing claims against the university, including breach of the settlement agreement,” the judge wrote.

Luti did not return a phone call seeking comment. Mooney said he and his client were unlikely to challenge the judge’s ruling, even though it was not entirely favorable.

“The lesson is there are no absolutes in life,” he said.

That’s pretty much the state of the law, too, said Zimmerman, of the Electronic Frontier Foundation.

In general, he said, courts have been protective of the right to anonymous speech. Political advocates have long used pen names or written anonymously, he said.

But there have always been exceptions to free-speech protections, and the area has grown more complex with the explosion of bloggers on the Internet.

Only a few high-level appellate courts have taken up the issue, he said, leaving rulings mostly in the hands of lower courts.

In California, a leading case was issued by a state appeals court in San Jose in early 2008. Called Krinsky v. Doe 6, it involved the head of a Florida company who sought the identities of people posting nasty remarks.

The court said the First Amendment generally protects anonymous speech, even though the Internet’s informality leads many “to substitute gossip for accurate reporting” and engage in “harsh and unbridled invective.”

But where plaintiffs can make a plausible case for defamation, the justices ruled, online anonymity may be breached. “When vigorous criticism descends into defamation,” they wrote, “constitutional protection is no longer available

Student’s blogs prove unpalatable at Stanford’s education school

donal brown — Mon, 27 Jul 2009 19:41:49 +0000

While professing to adhere to standards of intellectual freedom, Stanford’s School of Education found it difficult to work with one of their older students who is outspoken in opposing the school’s progressive policies. -DB

The Washington Post
Commentary
July 22, 2009
By Jay Mathews

Michele Kerr (she tells me it is pronounced “cur”) is a hard-working educator and Web surfer who is often mean to me. This is probably a good thing. When I post something stupid, Kerr—using her nom de Internet, “Cal Lanier”–is on me like my cat chasing a vole in the backyard.

Her acidic humor is so entertaining, however, and her command of the facts so complete, that I have come to look forward to her critiques. She tends to eviscerate me whenever I embrace anti-tracking or other progressive gospel preached in education schools these days, but I learn something each time.

I wish the supervisors of the Stanford Teacher Education Program (STEP) at that university’s School of Education had checked with me before they decided Kerr’s views and her blogging were inappropriate for a student in their program. They appeared to have decided her anti-progressive views were disrupting their classes, alienating other students and proving that she and Stanford were a bad fit. Kerr says they tried to stifle both her opinions and her blog, and threatened to withhold the Masters in Education she was working toward, based on their expressed fear that she was “unsuited for the practice of teaching.”

Kerr’s eventual triumph over such embarrassingly wrong-headed political correctness is a complicated story, but worth telling. In her struggle with STEP, she exposed serious problems in the way Stanford and, I suspect, other education schools, treat independent thinkers, particularly those who blog.

STEP retains the right to decide if a student is suited to teaching, and can deny even someone as smart and dedicated as Kerr, who has a splendid record as a tutor, a chance to work in the public schools.

Its leaders also can, the Kerr saga reveals, force a teacher candidate to stop blogging. Why? Because they have no defined policy on blogging. In Kerr’s case, they decided for themselves that she was stepping over some ill-defined line, and were careful to share their concerns with Kerr’s potential employers. In my view, that was so she would have less chance to land a job if they failed to deny her a credential.

At times, Kerr has made her Stanford tormentors look silly. There is, for instance, the email Kerr sent to her classmates after the program’s director, Rachel Lotan, said some of her fellow teacher trainees found her “domineering and intimidating” and didn’t want to sit next to her in class.

“For those of you who wish to continue requesting that you not sit with me in practicum, make sure you mention the reason so that Rachel can build her case for the next time we do our little dance.

‘Rachel, I do not want to sit next to Michele in practicum. It has nothing to do with her views; she’s just a domineering, overbearing bitch.’ DOB. We could print up cards or something. Don’t Sit Me Next to the DOB!” she wrote. “I’ll continue being me, and those of you who feel uncomfortable can maybe learn how to speak up. Or not. Your call.”

Lotan and Eamonn K. Callan, the education school’s dean for student affairs, disappointed me, and I suspect many of Kerr’s classmates, with their tone-deaf response. They said the email “could have the effect of silencing those who are wary of confronting” Kerr and that she “had not considered that her actions could have a chilling effect on other students, according to an email they sent to Kerr.

I tried and failed to reach Lotan and Callan, as well as some others, by email and phone to get their responses. I will post their thoughts on the Class Struggle blog whenever they get back to me. Lisa Lapin, assistant vice president for university communications, sent me this statement on behalf of Stanford:

“Although there are generally at least two sides to every story, we cannot comment on the particulars of this case because the confidentiality of a student’s record is involved. Nevertheless, on two matters of academic principle we can be clear. First, the Stanford School of Education has never attempted to dismiss or discipline a student, either for having a blog or for espousing any particular set of beliefs.
We stand firmly in support of intellectual freedom and the right of all students to express their views.

“Second, teachers, including student teachers at STEP, have ethical and legal obligations (e.g., under the Family Educational Rights and Privacy Act) to maintain the privacy interests of the students who have been entrusted to their care.”

How did these otherwise sensible and well-regarded academic professionals twist themselves into such an untenable knot? The story, according to Kerr and copies of correspondence she gave me, begins on March 14, 2008, when she attended an open house for admitted students.

She was almost 46, much older than most other STEP program admittees. Single, with a son in college, she had a long career as a business process management consultant, but began to tutor high school students struggling with difficult courses and standardized tests. She found she was good at it. Why not teach full time?

She was pleased that a program as prestigious as Stanford’s had room for her. She knew her views were not in line with the education school’s progressive sensibilities, but she said she was willing to adjust to whatever she found in the public schools, in order to apply her talent for reaching poorly organized, under-motivated teenagers.

At the open house, a STEP instructor asked if she planned to accept the offer of admission. Anyone else would have said yes. But Kerr, who calls herself “fatally truthful,” said the tuition would be difficult to afford and admitted she was philosophically out of sync with the program. She also said she had no intention of making waves, but it was too late.

To some it was like telling Another Mother for Peace that George W. Bush was going to be their next guest speaker.

Lotan called Kerr in for a 45-minute session on her doubts about the STEP policy orientation. Wouldn’t she be more comfortable elsewhere? Even when university ombudsman David Arnot Rasch assured Kerr the offer of admission was binding, Lotan couldn’t let it go. According to Kerr, Lotan looked for legal grounds to keep Kerr out, something Kerr said she discovered when another official mistakenly sent her an email that was meant just for Lotan.

“I really can’t believe this response,” the official said of Kerr’s decision to accept admission and decline another meeting with Lotan. “Are you forwarding her response to the lawyer?”

Kerr sought help from the Foundation for Individual Rights in Education (FIRE), a non-profit group based in Philadelphia that specializes in university free speech cases. FIRE staffer Adam Kissel wrote a letter to the president of Stanford. The senior university counsel answered, saying Kerr would start the program in June.

Over the summer and early fall, Kerr had no run-ins with STEP staff. There was no question of her academic abilities. She had scored a 780 in verbal and 800 in math on the Graduate Record Exam. She got good assessments in summer teaching and high grades in her summer courses. She began student teaching second-year algebra students at Sequoia High School, just north of Stanford in Redwood City.

But in September, Kerr’s blog, “Surviving Stanford,” which she had routinely referred to in her STEP classes, became an issue. Kerr is an expert in online communities and privacy, and thought she understood the rules. On her blog, she praised Sequoia and never identified Sequoia students directly or recognizably.

She did, however, discuss her disagreements with STEP’s progressive agenda. Although STEP had no anti-blogging policy and Kerr had broken no written rules the staff could identify, she was reprimanded by Callan and Lotan, who also notified Sequoia. The high school’s principal didn’t object, although she told Kerr she wasn’t thrilled, Kerr said. STEP’s displeasure was so great that Kerr finally took down the blog temporarily, renamed it, eliminated all references to Stanford, and gave it password protection so that only she and a few friends could read it.

That wasn’t enough for the STEP folk. Two months later, Lotan wrote that she was concerned that Kerr was “unsuited for the practice of teaching,” beginning a process that could have ended in Kerr being denied a teaching credential. Lotan complained that Kerr was late to some Stanford classes, and in turning in assignments.

Kerr learned to her dismay that a student could be denied a credential for any reason–even those that have nothing to do with teaching. Kerr’s supervisor told her in late November, without warning, that he was unhappy with her work and gave her low ratings in professionalism, she said. According to Kerr, he said she had lied to him, and made it clear her chances of getting through the program successfully were in jeopardy.

Kerr fought back, demanding proof of the charges. Kerr said the supervisor withdrew the accusation of lying. Lotan admitted that she had no idea if other STEP students were similarly tardy or why some didn’t want to sit next to Kerr.

Meanwhile, Callan discovered that Kerr had continued blogging. He demanded the password. Kerr refused, saying that the blog didn’t identify Stanford and was outside its jurisdiction. Callan wrote a letter, copying Sequoia’s principal, accusing Kerr of “serious breaches of confidentiality,” without specifying what Kerr had done. Kerr denies that she wrote anything even remotely inappropriate.

“If blogging is so unacceptable, why doesn’t Stanford have a blogging policy with guidelines?” she asked. Kissel, at FIRE, wrote another letter to Stanford that the hostile reception to Kerr’s views and blog “risks violating both its legal obligation to protect student speech under California’s Leonard Law, and its own policies regarding expressive conduct.”

Kerr filed a grievance with Deborah J. Stipek, the education school dean. That finally ended the game in her favor. Stipek did not grant any of Kerr’s complaints, although she agreed to look into drafting a blogging policy. Her main action was removing Lotan and Callan’s authority over Kerr, and giving Kerr a new supervisor, Megan Taylor.

“She was amazing,” Kerr said of Taylor. “I learned a lot from her, and trust me, I don’t say that often.”

A new principal at Sequoia, aware of the controversy, declined to give Kerr a permanent job, Kerr said. She later received an offer to teach geometry, algebra and humanities at Oceana High School, on the Pacific side of the low mountains of the San Francisco peninsula.

Despite her struggles, Kerr says she is still glad she went to Stanford. “Yes, the year was an ordeal, but my fellow STEP classmates are amazingly talented, passionate people–and they aren’t all idealistic dreamers, I’m happy to say. While I disagree with STEP’s ideology, the staff is smart and dedicated. I had outstanding discussions with many instructors and professors, and I respect them all. Even Rachel.

She’s just a ruthless political animal who believes she was protecting her program from enemy infiltration.”

Kerr says she isn’t blogging at the moment, although comments from her alter ego, Cal Lanier, still pop up on the Web. She didn’t want me to identify her as a teacher blogger in the headline of this column, for fear it would spook her new employers. She said she will not blog about her job, and advises all teachers to be cautious.

She said she feels “teacher blogs are an open area crying out for guidelines–and not just at Stanford…The mere existence of a blog is considered trouble—even though there are literally thousands of teacher blogs out there.”

Many of the teacher blogs I read are interesting enough to get those fine educators into trouble, if administrators lose their perspective, as some at Stanford did. That’s a shame. Students could learn from the kind of arguments Kerr and I have. There is much to be gained from challenging ill-examined assumptions, in class, in this column and in the ed school value systems that made Kerr’s pursuit of a teaching degree such an ordeal.

Associated Press taking hard line on use of its content

donal brown — Mon, 27 Jul 2009 17:59:11 +0000

A.P. is adding new software to each of its articles to track how the article is used in an aggressive move to gain more profit from its stories. -DB

The New York Times
July 24, 2009
By Richard Perez-Pena

Taking a new hard line that news articles should not turn up on search engines and Web sites without permission, The Associated Press said Thursday that it would add software to each article that shows what limits apply to the rights to use it, and that notifies The A.P. about how the article is used.

Tom Curley, The A.P.’s president and chief executive, said the company’s position was that even minimal use of a news article online required a licensing agreement with the news organization that produced it. In an interview, he specifically cited references that include a headline and a link to an article, a standard practice of search engines like Google, Bing and Yahoo, news aggregators and blogs.

Asked if that stance went further than The A.P. had gone before, he said, ‘’That’s right.’’ The company envisions a campaign that goes far beyond The A.P., a nonprofit corporation. It wants the 1,400 American newspapers that own the company to join the effort and use its software.

‘’If someone can build multibillion-dollar businesses out of keywords, we can build multihundred-million businesses out of headlines, and we’re going to do that,’’ Mr. Curley said. The goal, he said, was not to have less use of the news articles, but to be paid for any use.

Search engines and news aggregators contend that their brief article citations fall under the legal principle of fair use. Executives at some news organizations have said they are reluctant to test the Internet boundaries of fair use, for fear that the courts would rule against them.

Mr. Curley declined to address the fair use question, or to say what action The A.P. would take against sites that use articles without licensing.

‘’We’re not picking the legal remedy today,’’ he said. ‘’Let’s define the scope of the problem.’’

News organizations already have the ability to prevent their work from turning up in search engines—but doing so would shrink their Web audience, and with it, their advertising revenues. What The A.P. seeks is not that articles should appear less often in search results, but that such use would become a new source of revenue.

Gabriel Stricker, a spokesman for Google, said, ‘’We believe search engines are of real benefit to news publishers, driving valuable traffic to their Web sites and connecting them with readers around the world.’’ Some news executives agree and contend that a confrontation with search engines is misguided.

The new program, approved Thursday by The A.P. board, is being introduced in stages that reach into next year. It follows through on a statement the company made in April vowing to take on digital piracy not only on its own behalf, but also as the agent for the embattled newspaper industry.

Each article—and, in the future, each picture and video—would go out with what The A.P. called a digital ‘’wrapper,’’ data invisible to the ordinary consumer that is intended, among other things, to maximize its ranking in Internet searches. The software would also send signals back to The A.P., letting it track use of the article across the Web.

Newspaper executives have said that by taking the lead, The A.P. ensures a unified approach, saves publishers from having to design their own software and circumvents possible charges of collusion against the papers.

Some popular news aggregators like The Huffington Post and Google News have licensing agreements, paying The A.P. for the use of its material. But no comparable agreements cover general Internet searches that turn up news articles with a variety of other results.

Executives at newspapers and other traditional news organizations have long complained about how some sites make money from their work, putting ads on pages with excerpts from articles and links to the sources of the articles.

Another complaint is that a link to an article sometimes leads to another secondhand user, not the original source, which can deprive the creator of some of the audience for its own site and the ads on it. Some less-well-known sites reprint articles outright, or large parts of them, without permission, a clearer copyright violation. But there is little consensus on how extensive that problem is for news organizations.