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“Another Case Of Roberts’s Judicial Minimalism”: Supreme Court; Your Facebook Threats Aren’t Necessarily Real Threats

Today, the Supreme Court held that you can post a threat to kill your wife on Facebook, but you’re not guilty of making a threat.

This is good news if you’re focused on free speech, especially online. It’s bad news if you’re concerned about the capacity of information technology to amplify threats, stalking, and coercion.

The result in the case, Elonis v. U.S., comes as something of a surprise, especially because it was a 7-2 decision, with Chief Justice Roberts writing for the court. That means the court’s liberal wing, the moderate-conservatives (Kennedy, Roberts) and even Justice Scalia were all in agreement.

The reason, however, was not the First Amendment. Court-watchers, and the defendant, Anthony Elonis, noted that the “threat” was simply a set of rap lyrics, and debated whether they were constitutionally protected. But the Court itself didn’t go there, instead basing its ruling purely on the federal criminal statute.

That statute says that anyone who “transmits in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another” is guilty of a felony. But what is a “threat,” exactly? Specifically, does it require evidence of an actual intent to harm the person, or is it enough “that a reasonable person would regard Elonis’s communications as threats”?

The district court had said the latter, but today, the Supreme Court disagreed. Threatening language is not enough. Targets feeling threatened is not enough. Criminal law requires mens rea, an “evil mind,” and in this case, the Court held that there must be some specific intention to threaten. Since that wasn’t established in this case (and since Elonis assiduously denied having it) the Court threw out his conviction.

(In dissent, Justice Thomas argued that a “general intent” should be sufficient, while Justice Alito argued for an intermediate standard of “recklessness.”)

Now, here’s where it gets interesting. Elonis is also known as “Tone Dougie,” and has produced some seriously bad rap lyrics, quoted at length in Chief Justice Roberts’s opinion. Indeed, to bleep out the bad words required 22 asterisks. The best parts of Tone Dougie’s oeuvre aren’t even the initial threats to his ex-wife, but the meta-threats that reference his investigation by the FBI. Here’s a sampling, asterisks provided by the Supreme Court:

You know your s***’s ridiculous
when you have the FBI knockin’ at yo’ door
Little Agent lady stood so close
Took all the strength I had not to turn the b***• ghost
Pull my knife, flick my wrist, and slit her throat
Leave her bleedin’ from her jugular in the arms of her partner…
S***, I’m just a crazy sociopath
that gets off playin’ you stupid f***s like a fiddle
And if y’all didn’t hear, I’m gonna be famous
Cause I’m just an aspiring rapper who likes the attention
who happens to be under investigation for terrorism…

Fab Five Freddy this is not. It’s not even Biz Markie. But it does bear a passing resemblance to someone Justice Alito referred to as a “well-compensated rapper,” namely Eminem.

The difference is that Eminem’s lyrics are clearly contained within a work of art, but Tone Dougie’s were simple Facebook posts. Yes, they rhymed (sort of), but they were simple posts.

“If I only knew then what I know now… I would have smothered your ass with a pillow. Dumped your body in the back seat. Dropped you off in Toad Creek and made it look like a rape and murder.”

The Court noted that had Elonis typed these words out and snailmailed them to his ex-wife, it would almost certainly constitute a criminal threat, because it was made directly to the intended victim and thus counts as evidence of mens rea. (The Court didn’t use the term snailmail, of course—and referred to Facebook as a “social networking Web site.”) Presumably, if the text was emailed—or maybe direct-messaged?—it would also, thus, be a criminal threat.

So the only reason it wasn’t is that it was posted semi-publicly on Facebook. This allowed Elonis to tell one Facebook friend that “I’m doing this for me. My writing is therapeutic,” and to proclaim himself a victim of artistic censorship. Therapy, art, whatever—but not actual threats.

(In a detail not widely reported in the press, Elonis also posted “therapeutically” about his co-workers—at one point posting a picture taken at Halloween of him holding a toy knife to a co-worker’s neck, with the caption “I wish.” Classy.)

Now, throwing out Elonis’s conviction does not mean that he’s permanently off the hook. He could be tried again, although the state would now have to prove that he intended to threaten his targets.

But the Court’s decision is a victory for free speech advocates, and a loss for those worried about harassing speech online.

On the one hand, you can’t be convicted just because someone else finds what you said on Facebook to be threatening. As a poster child for civil liberties, Tone Dougie now joins the KKK marchers in Skokie. We may not like what he says, but we’re proud to defend his right to say it. Civil liberties protect all of us.

On the other hand, Facebook is a unique, new medium for harassment. (This, incidentally, was the company’s rationale for its “real names” policy.) Arguably, threats made in public are even more terrifying than those made in private, especially if other people “like” what you’ve said.

The Court is treating it like a newspaper, or an open mic at the poetry slam, but many of us relate to it far more intimately. It’s a venue all its own—a combination of telephone, bulletin board, and, occasionally, mob scene.

Moreover, requiring an intent to threaten makes it very easy for stalkers and vengeful exes to deny liability. Oh, that wasn’t a threat, I was just musing aloud. Right.

Of course, since the Court declined to entertain the constitutional questions, this is all just a matter of statutory law, and statutes can be changed. The Court also successfully avoided the question of when art is art. It didn’t say what Elonis’s words were, only that they weren’t actual threats. Elonis is thus yet another case of Roberts’s judicial minimalism.

Though I bet it doesn’t feel that way to Elonis’s ex-wife.

 

By: Jay Michealson, The Daily Beast, June 1, 2015

June 3, 2015 Posted by | Free Speech, Spousal Abuse, U. S. Supreme Court | , , , , , , , , | 1 Comment

“Shouldn’t Be The Victim’s Responsibility”: If Tech Companies Wanted To End Online Harassment, They Could Do It Tomorrow

If someone posted a death threat to your Facebook page, you’d likely be afraid. If the person posting was your husband – a man you had a restraining order against, a man who wrote that he was “not going to rest until [your] body [was] a mess, soaked in blood and dying from all the little cuts” – then you’d be terrified. It’s hard to imagine any other reasonable reaction.

Yet that’s just what Anthony Elonis wants you to believe: That his violent Facebook posts – including one about masturbating on his dead wife’s body – were not meant as threats. So on Monday, in Elonis v United States, the US supreme court will start to hear arguments in a case that will determine whether threats on social media will be considered protected speech.

If the court rules for Elonis, those who are harassed and threatened online every day – women, people of color, rape victims and young bullied teens – will have even less protection than they do now. Which is to say: not damn much.

For as long as people – women, especially – have been on the receiving end of online harassment, they’ve been strategizing mundane and occasionally creative ways to deal with it. Some call law enforcement when the threats are specific. Others mock the harassment – or, in the case of videogame reviewer and student Alanah Pearce, send a screenshot to the harasser’s mother.

But the responsibility of dealing with online threats shouldn’t fall on the shoulders of the people who are being harassed. And it shouldn’t need to rise to being a question of constitutional law. If Twitter, Facebook or Google wanted to stop their users from receiving online harassment, they could do it tomorrow.

When money is on the line, internet companies somehow magically find ways to remove content and block repeat offenders. For instance, YouTube already runs a sophisticated Content ID program dedicated to scanning uploaded videos for copyrighted material and taking them down quickly – just try to bootleg music videos or watch unofficial versions of Daily Show clips and see how quickly they get taken down. But a look at the comments under any video and it’s clear there’s no real screening system for even the most abusive language.

If these companies are so willing to protect intellectual property, why not protect the people using your services?

Jaclyn Friedman, the executive director of Women Action Media (WAM!) – who was my co-editor on the anthology Yes Means Yes – told me, “If Silicon Valley can invent a driverless car, they can address online harassment on their platforms.”

Instead, Friedman says, “They don’t lack the talent, resources or vision to solve this problem – they lack the motivation.”

Last month, WAM! launched a pilot program with Twitter to help the company better identify gendered abuse. On a volunteer basis, WAM! collected reports of sexist harassment, and the group is now analyzing the data to help Twitter understand “how those attacks function on their platform, and to improve Twitter’s responses to it”.

But when a company that made about $1bn in ad revenue in 2014 has to rely on a non-profit’s volunteers to figure out how to deal with a growing problem like gendered harassment, that doesn’t say much about its commitment to solving the problem.

A Twitter spokesperson told me that WAM! is just one of many organizations the company works with on “best practices for user safety”. But while Twitter’s rules include a ban on violent threats and “targeted abuse”, they do not, I was told, “proactively monitor content on the platform.”

When WAM! and the Everyday Sexism Project put pressure on Facebook last year over pages that glorified violence against women, the company responded that its efforts to deal with gender-specific hate speech “failed to work effectively as we would like” and promised to do better.

On Sunday, a Facebook representative confirmed to me that since then, the social network has followed through on some of these steps, like completing more comprehensive internal trainings and working more directly with women’s groups. Harassment on Facebook remains ubiquitous nonetheless – and even the most basic functions to report abuse are inadequate.

So if those who face everyday online harassment can’t rely on the law, and if social media companies are reluctant to invest in technologies to scrub it from their platforms, what then?

Emily May, the executive director of the anti-street harassment organization Hollaback, told me that, like many women, “I don’t want to be on YouTube or Twitter if every time I open up TweetDeck I see another rape threat.”

Do you?

 

By: Jessica Valenti, The Guardian, December 1, 2014

December 2, 2014 Posted by | Domestic Violence, Social Media, Violence Against Women | , , , , , , , | Leave a comment

“Why Isn’t Everyone More Worried About Me?”: Maybe The Most Ridiculous Obamacare “Victim” Story Yet

Apparently, there was a meeting of the editors at The New York Times op-ed page in which someone said, “You know how every time someone does a story about one of these Obamacare ‘victims’ whose insurance companies are cancelling their plans, it turns out they could do really well on the exchange, but no one bothers to check? We should get one of them to write an op-ed, but not bother to ask what options they’ll have.” And then someone else responded, “Right, don’t bother with the fact-checking. But we need a new twist. What if we find someone who’ll complain that the problem with Obamacare is that other people care too much about poor people and the uninsured, while what they ought to be doing is spending more time liking her Facebook post about her possibly increased premiums?” The editors looked at each other and said, “That’s gold. Gold!”

And this was the result. Written by Lori Gottlieb, a Los Angeles psychotherapist and author, it relates how she got a cancellation letter from Anthem Blue Cross and was offered a plan for $5,400 more a year, then had a frustrating phone call with the company. Did she go to the California health exchange and find out what sorts of deals would be available to her? Apparently not. She took Anthem at their word—you can always trust insurance companies, after all!—then took to Facebook, where she “vented about the call and wrote that the president should be protecting the middle class, not making our lives substantially harder.”

And here’s where our story takes a shocking turn. Instead of expressing what she felt was the appropriate sympathy, those 1,037 people on Facebook she thought were her friends but turned out just to be “friends” had the nerve to point out that the Affordable Care Act will help millions of previously uninsured and uninsurable people get coverage. Gottlieb was disgusted with these people she termed the “smug insureds.” And none of them even “liked” her post!

Like Bridget Jones’s “smug marrieds,” the “smug insureds” — friends who were covered through their own or spouses’ employers or who were grandfathered into their plans — asked why I didn’t “just” switch all of our long-term doctors, suck it up and pay an extra $200 a month for a restrictive network on the exchange, or marry the guy I’m dating. How romantic: “I didn’t marry you just to save money, honey. I married you for your provider network.”

Along with the smug insureds, President Obama doesn’t care much about the relatively small percentage of us with canceled coverage and no viable replacement. He keeps apologizing while maintaining that it’s for the good of the country, a vast improvement “over all.”

And the “over all” might agree. But the self-employed middle class is being sacrificed at the altar of politically correct rhetoric, with nobody helping to ensure our health, fiscal or otherwise, because it’s trendy to cheer for the underdog. Embracing the noble cause is all very well — as long as yours isn’t the “fortunate” family that loses its access to comprehensive, affordable health care while the rest of the nation gets it.

The truly noble act here is being performed by my friend Nicole, who keeps posting Obamacare fiasco stories on my Facebook page, despite being conspicuously ignored, except for my single “like.” It’s the lone “like” that falls in the forest, the click nobody wants to hear.

How terribly smug, to think that the fate of millions of poor people who will now get insurance is as important as the suffering of this one person who might have to pay more for comprehensive coverage, and also happens to have access to The New York Times where she can air her grievances! If only it weren’t so “trendy to cheer for the underdog.”

It’s one thing to feel your own problems more acutely than those of other people, even millions of other people, even many whose problems make yours look trivial by comparison. We all do that, and we could barely function if we didn’t. It’s quite another thing to expect that other people will see your problems as more important than those of millions. I sprained my ankle a few weeks ago, and I’ll admit that in the time since I’ve given more thought to my ankle’s recovery than I have to the 660,000 people who die every year from malaria. But if I asked you why you aren’t thinking more about my ankle than you are about malaria, you’d wonder if it was my brain that I had sprained.

I imagine that after her disappointment at the response to her Facebook post, Gottlieb will be even more disappointed with the response to her op-ed explaining her disappointment with the response to her Facebook post. So if she wants to feel better, the first thing she ought to do is go to the exchange and she what her options are. There’s almost certainly something better than the plan her insurance company is trying to get her to buy. And then she can go to Facebook and ask her “friends” to celebrate her good fortune.

 

By: Paul Waldman, Contributing Editor, The American Prospect, November 11, 2013

November 12, 2013 Posted by | Affordable Care Act, Health Insurance Companies, Obamacare | , , , , , | Leave a comment

“Privacy? We Gave That Away Already”: You Might Want To Rethink Your Relationship With Technology

All the President’s Men, the movie made from the book that inspired my career in journalism, was on (very) late night TV the other night. What’s strikingly anachronistic about the film is not the sideburns and bug-eye glasses, but the rudimentary journalistic tactics of the reporters who broke the Watergate story.

They weren’t on Google, searching for information that may or may not be accurate, and using a research technique that is so easily tracked that pop-up ads related to the search will begin appearing almost immediately. They didn’t drive through toll booths with a convenient electronic device on the windshield that can (and do) track their movements and the specific time of the movements. They didn’t do email interviews, cell phone interviews or even many hardline phone interviews that could leave an electronic trail.

The movie shows the real, unglamorous shoe-leather work of being a reporter. It’s one scene after another of Bob Woodward and Carl Bernstein driving to a neighborhood, parking blocks away to avoid detection and then knocking on people’s doors, sweet-talking their way into living rooms for interviews. It’s Woodward finding ways to meet his source, “Deep Throat” – not by thumb-typing a text, but by signals that involved the moving of a plant on a balcony. This was how the duo managed to get people to talk to them – sometimes at great personal risk – and how Woodward managed to keep Mark Felt’s identity a secret until Felt’s family disclosed his role in 2005.

Journalists are concerned at the surveillance of their phone records. And many are also jarred by the disclosure that federal authorities have been monitoring certain activity on the web and collecting phone call data. But where would anyone get the idea that any communication attached to technology and electronic’s is really private?

We have a new Facebook generation which is remarkably willing to give up its collective privacy by posting their embarrassing photos and travel plans and insignificant “status” updates on what is the biggest billboard in the cyber-sky. And yet the same people live in the delusion that no one is monitoring it? That a potential burglar isn’t tipped off by someone’s Pinterest photos of the family currently on vacation, a sign that the house is unattended? That a potential employer might see a photo of an applicant with someone doing shots off his chest and think, “maybe this isn’t someone we want working here?”

True, the idea government surveillance has a different quality to it, from both sides. We expect our government to respect our privacy. The government, meanwhile, knows it is also expected to track the bad guys. The balance of those two goals will surely be debated yet again after the recent disclosure of surveillance techniques. But in the meantime, Americans might want to rethink our relationship with technology and the privacy we lose by using it.

This applies exponentially to journalists, who might want to get back to basics – especially when reporting sensitive stories. When I was reporting in Eastern Europe in the 1990s, almost no one would be interviewed on the phone. They had just ousted a communist regime, and they were convinced, still, that their phones were being tapped. They didn’t even talk openly on the subway, so well-trained they were to be discreet. It made it harder to report, but it also promoted some better work tactics. I had to actually go meet someone somewhere and do interviews in person. I was less likely to misinterpret, and came back with more information than I would have gotten in a quick phone conversation. Woodward and Bernstein did it. So should the rest of us.

 

By: Susan Milligan, Washington Whispers, U. S. News and World Report, June 10. 2013

June 11, 2013 Posted by | Privacy, Technology | , , , , , , , | Leave a comment

“Non-Factual Facts”: Washington Post Hedges Claim That Google, Facebook, Gave The Government Direct Access To Their Servers

Yesterday, the Washington Post reported a shocking story about how the FBI and National Security Agency had partnered with Google, Facebook, and many other tech companies to spy on the tech companies’ hundreds of millions of users.

The government agencies, the Post said, were “tapping directly into the central servers of nine leading U.S. Internet companies, extracting audio, video, photographs, e-mails, documents and connection logs that enable analysts to track a person’s movements and contacts over time.”

This surveillance program, the Post reported, had been “knowingly” facilitated by the tech companies, which had allowed the government to tap directly into their central servers.

The Post story described a “career intelligence officer” as being so horrified by the power and privacy intrusion of this surveillance system that the officer was helping to leak the news to expose it.

“They quite literally can watch your ideas form as you type,” the officer reportedly told the Post.

Not surprisingly, the Post’s story created an instant explosion of outrage. The ire was directed at both the government and the technology companies.

The story also led to immediate, explicit denials from the technology companies. Google, Facebook, and Yahoo all said that the government did not have “direct access” to any servers. Apple said it had never even heard of the program it was supposedly partnering with.

So The Post’s claim that the companies had voluntarily given the government direct, open, un-monitored access to their servers quickly seemed suspect.

And now, 24 hours later, after more denials and questions, the Post has made at least two important changes to its spying story.

First, the Post has eliminated the assertion that the technology companies “knowingly” participated in the government spying program.

Second, and more importantly, the Post has hedged its assertion that the companies have granted the government direct access to their servers.

The latter change is subtle, but important. In the first version of its story, the Post stated as a fact that the government had been given direct access to the companies’ servers.

Now, the Post attributes the claim to a government presentation–a document that has been subjected to significant scrutiny and skepticism over the past day and that, in this respect, at least, seems inaccurate.

In other words, the Post appears to have essentially retracted the most startling and important part of its story: That the country’s largest technology companies have voluntarily given the government direct access to their central servers so the government can spy on the tech companies’ users in real time.

Specifically, here’s how the Washington Post story has changed…

Here’s the original first paragraph:

The National Security Agency and the FBI are tapping directly into the central servers of nine leading U.S. Internet companies, extracting audio, video, photographs, e-mails, documents and connection logs that enable analysts to track a person’s movements and contacts over time.

Here’s the updated paragraph (our emphasis):

The National Security Agency and the FBI are tapping directly into the central servers of nine leading U.S. Internet companies, extracting audio and video chats, photographs, e-mails, documents, and connection logs that enable analysts to track foreign targets, according to a top-secret document obtained by The Washington Post.

That change is important. The direct-access claim changes from a fact asserted by the Washington Post to a claim made in a document the Washington Post has seen–a document that might be wrong.

The idea that Google, Facebook, Apple, et al, had voluntarily given the government direct unfettered access to their servers always seemed far-fetched.

This behavior would justifiably trigger the wrath of the companies’ hundreds of millions of users worldwide and exacerbate already existing concerns that these companies routinely trample all over their users’ privacy.

Furthermore, the government’s assertions that its spying programs are directed primarily at foreigners, not US citizens, would not be viewed as comforting to Google, Facebook, et al.

Why not?

Because the vast majority of the users of these companies’ services are foreigners.

If the international users of Facebook, Google, et al, were to feel that the companies were opening their data centers in this way, the international users might revolt. So it’s hard to imagine that these companies would just voluntarily open their servers to the U.S. government (or, for that matter, any other government).

The Washington Post also broke the news about the existence of the vast government program Internet spying called PRISM, which other outlets have since confirmed. And the story illustrated how extensively the government uses Internet communications in its intelligence efforts and how important these communications are to national security.

But, a day after the Post story appeared, it seems likely that the following claims are wrong or at least need major qualification:

  • that the NSA and FBI are “tapping directly into the central servers” of Facebook, Google, et al, and,
  • that the government can “quite literally watch your ideas form as you type.”

 

By: Henry Blodget, Business Insider, June 7, 2013

June 9, 2013 Posted by | National Security | , , , , , , , , | Leave a comment

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