http://ap.google.com/article/ALeqM5iAfAuNiWBtS8vWv-VsrfPMLAcUUgD91P0N980
`Public' online spaces don't carry speech, rights
By ANICK JESDANUN – 1 day ago
NEW YORK (AP) — Rant all you want in a public park. A police officer
generally won't eject you for your remarks alone, however unpopular or
provocative.
Say it on the Internet, and you'll find that free speech and other
constitutional rights are anything but guaranteed.
Companies in charge of seemingly public spaces online wipe out content
that's controversial but otherwise legal. Service providers write their
own rules for users worldwide and set foreign policy when they
cooperate with regimes like China. They serve as prosecutor, judge and
jury in handling disputes behind closed doors.
The governmental role that companies play online is taking on greater
im****tance as their services — from online hangouts to virtual
repositories of photos and video — become more central to public
discourse around the world. It's a fallout of the Internet's market-
driven growth, but possible remedies, including government regulation,
can be worse than the symptoms.
Dutch photographer Maarten Dors met the limits of free speech at Yahoo
Inc.'s photo-sharing service, Flickr, when he posted an image of an
early-adolescent boy with disheveled hair and a ragged T-****rt, staring
blankly with a lit cigarette in his mouth.
Without prior notice, Yahoo deleted the photo on grounds it violated an
unwritten ban on depicting children smoking. Dors eventually convinced
a Yahoo manager that — far from promoting smoking — the photo had value
as a statement on poverty and street life in Romania. Yet another
employee deleted it again a few months later.
"I never thought of it as a photo of a smoking kid," Dors said. "It was
just of a kid in Romania and how his life is. You can never make a
serious do***entary if you always have to think about what Flickr will
delete."
There may be legitimate reasons to take action, such as to stop spam,
security threats, copyright infringement and child ****ography, but
many cases aren't clear-cut, and balancing competing needs can get
t*****.
"We often get caught in the middle between a rock and a hard place,"
said Christine Jones, general counsel with service provider GoDaddy.com
Inc. "We're obviously sensitive to the freedoms we have, particularly
in this country, to speak our mind, (yet) we want to be good cor****ate
citizens and make the Internet a better and safer place."
In Dors' case, the law is fully with Yahoo. Its terms of service,
similar to those of other service providers, gives Yahoo "sole
discretion to pre-screen, refuse or remove any content." Service
providers aren't required to police content, but they aren't prohibited
from doing so.
While mindful of free speech and other rights, Yahoo and other
companies say they must craft and enforce guidelines that go beyond
legal requirements to protect their brands and foster safe, enjoyable
communities — ones where minors may be roaming.
Guidelines help "engender a positive community experience," one to
which users will want to return, said Anne Toth, Yahoo's vice president
for policy.
Dors ultimately got his photo restored a second time, and Yahoo has
apologized, acknowledging its community managers went too far.
Heather Champ, community director for Flickr, said the company crafts
policies based on feedback from users and trains employees to weigh
disputes fairly and consistently, though mistakes can happen.
"We're humans," she said. "We're pretty transparent when we make
mistakes. We have a record of being good about stepping up and fessing
up."
But that underscores another consequence of having online commons
controlled by private cor****ations. Rules aren't always clear,
enforcement is inconsistent, and users can find content removed or
accounts terminated without a hearing. Appeals are solely at the
service provider's discretion.
Users get caught in the crossfire as hundreds of individual service
representatives apply their own interpretations of cor****ate policies,
sometimes imposing personal agendas or misreading guidelines.
To wit: Verizon Wireless barred an abortion-rights group from obtaining
a "short code" for conducting text-messaging campaigns, while
LiveJournal suspended legitimate blogs on fiction and crime victims in
a crackdown on pedophilia. Two lines criticizing President Bush
disappeared from AT&T Inc.'s webcast of a Pearl Jam concert. All three
decisions were reversed only after senior executives intervened amid
complaints.
Inconsistencies and mysteries behind decisions lead to perceptions that
content is being stricken merely for being unpopular.
"As we move more of our communications into social networks, how are we
limiting ourselves if we can't see alternative points of view, if we
can't see the things that offend us?" asked Fred Stutzman, a University
of North Carolina researcher who tracks online communities.
First Amendment protections generally do not extend to private property
in the physical world, allowing a shopping mall to legally kick out a
customer wearing a T-****rt with a picture of a smoking child.
With online services becoming greater conduits than shopping malls for
public communications, however, some advocacy groups believe the
federal government needs to guarantee open access to speech. That, of
course, could also invite meddling by the government, the way
broadcasters now face indecency and other restrictions that are
criticized as vague.
Others believe companies shouldn't police content at all, and if they
do, they should at least make clearer the rules and the mechanisms for
appeal.
"Vagueness does not inspire the confidence of people and leaves room
for gaming the system by outside groups," said Lauren Weinstein, a
veteran computer scientist and Internet activist. "When the rules are
clear and the grievance procedures are clear, then people know what
they are working with and they at least have a starting point in urging
changes in those rules."
But Marjorie Heins, director of the Free Expression Policy Project,
questions whether the private sector is equipped to handle such matters
at all. She said written rules mean little when service representatives
applying them "tend to be tone-deaf. They don't see context."
At least when a court order or other governmental action is involved,
"there's more of a guarantee of due process protections," said Robin
Gross, executive director of the civil-liberties group IP Justice. With
a private company, users' rights are limited to the service provider's
contractual terms of services.
Jonathan Zittrain, a Harvard professor who recently published a book on
threats to the Internet's openness, said parties unhappy with sensitive
materials online are increasingly aware they can simply pressure
service providers and other intermediaries.
"Going after individuals can be difficult. They can be hard to find.
They can be hard to sue," Zittrain said. "Intermediaries still have a
calculus where if a particular Web site is causing a lot of trouble ...
it may not be worth it to them."
Unable to stop purveyors of child ****ography directly, New York
Attorney General Andrew Cuomo recently persuaded three major access
providers to disable online newsgroups that distribute such images. But
rather than cut off those specific newsgroups, all three decided to
reduce administrative hassles by also disabling thousands of legitimate
groups devoted to TV shows, the New York Mets and other topics.
Gordon Lyon, who runs a site that archives e-mail postings on security,
found his domain name suddenly deactivated because one entry contained
MySpace passwords obtained by hackers.
He said MySpace went directly to domain provider GoDaddy, which
effectively shut down his entire site, rather than contact him to
remove the one posting or replace passwords with asterisks. GoDaddy
justified such drastic measures, saying that waiting to reach Lyon
would have unnecessarily exposed MySpace passwords, including those to
profiles of children.
Meanwhile, in response to complaints it would not specify, Network
Solutions LLC decided to suspend a Web hosting account that Dutch
filmmaker Geert Wilders was using to promote a movie that criticizes
the Quran — before the movie was even posted and without the company
finding any actual violation of its rules.
Service providers say unhappy customers can always go elsewhere, but
choice is often limited.
Many leading services, particularly online hangouts like Facebook and
News Corp.'s MySpace or media-sharing sites such as Flickr and Google
Inc.'s YouTube, have acquired a cachet that cannot be replicated. To
evict a user from an online community would be like bani****ng that
person to the outskirts of town.
Other sites "don't have the critical mass. No one would see it," said
Scott Kerr, a member of the gay punk band Kids on TV, which found its
profile mysteriously deleted from MySpace last year. "People know that
MySpace is the biggest site that contains music."
MySpace denies engaging in any censor****p and says profiles removed are
generally in response to complaints of spam and other abuses. GoDaddy
also defends its commitment to speech, saying account suspensions are a
last resort.
Few service providers actively review content before it gets posted and
usually take action only in response to complaints.
In that sense, Flickr, YouTube and other sites consider their reviews
"checks and balances" against any community mob directed at unpopular
speech — YouTube has pointedly refused to delete many video clips tied
to Muslim extremists, for instance, because they didn't specifically
contain violence or hate speech.
Still, should these sites even make such rules? And how can they ensure
the guidelines are consistently enforced?
YouTube has policies against showing people "getting hurt, attacked or
humiliated," banning even clips OK for TV news shows, but how is
YouTube to know whether a video clip shows real violence or actors
****traying it? Either way, showing the video is legal and may provoke
useful discussions on brutality.
"Balancing these interests raises very tough issues," YouTube
acknowledged in a statement.
Unwilling to play the role of arbiter, the group-messaging service
Twitter has resisted pressure to tighten its rules.
"What counts as name-calling? What counts as making fun of someone in a
way that's good-natured?" said Jason Goldman, Twitter's director of
program management. "There are sites that do employ teams of people
that
do that investigation ... but we feel that's a job we wouldn't do
well."
Other sites are trying to be more transparent in their decisions.
Online auctioneer eBay Inc., for instance, has elaborated on its
policies over the years, to the extent that sellers can drill down to
where they can ****p hatching eggs (U.S. addresses only) and what items
related to natural disasters are permissible (they must have
"substantial social, artistic or political value"). Hypothetical
examples accompany each policy.
LiveJournal has recently eased restrictions on blogging. The new
harassment clause, for instance, expressly lets members state negative
feelings or opinions about another, and parodies of public figures are
now permitted despite a ban on impersonation. Restrictions on ****ity
specifically exempt non-***ualized art and breast feeding.
The site took the unusual step of soliciting community feedback and
setting up an advisory board with prominent Internet scholars such as
Danah Boyd and Lawrence Lessig and two user representatives elected in
May.
The effort comes just a year after a crackdown on pedophilia backfired.
LiveJournal suspended hundreds of blogs that dealt with child abuse and
***ual violence, only to find many were actually fictional works or
discussions meant to protect children. The company's chief executive
issued a public apology.
Community backlash can restrain service providers, but as Internet
companies continue to consolidate and Internet users spend more time
using vendor-controlled platforms such as mobile devices or social-
networking sites, the community's power to demand free speech and other
rights diminishes.
Weinstein, the veteran computer scientist, said that as people
congregate at fewer places, "if you're knocked off one of those, in a
lot of ways you don't exist."
Copyright © 2008 The Associated Press. All rights reserved.
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