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Online limits to the First Amendment

A one-two punch handed down this week by U.S. courts to free-speech advocates may signal that the freewheeling days of unfettered speech on the Internet are numbered.

A one-two punch handed down this week by U.S. courts to free-speech advocates may signal that the freewheeling days of unfettered speech on the Internet are numbered, First Amendment experts said.

The decisions in two lawsuits testing controversial copyright legislation on Wednesday upheld the ability of content owners to restrict access to their works and showed that U.S. courts are more than willing to limit what can be published online.

Along with the government's push for more surveillance powers on the Internet, the judgments could herald the end to the "untouchable" status of free speech on the Internet, legal experts said.

"Unfortunately, I am not one of the optimists on this front," said Allonn Levy, a partner with the HS Law Group and the lead attorney defending a group of Web sites against a California lawsuit brought by the DVD Copy Control Association. "There is a great deal of policy being created to differentiate between analog media and digital media, between the Internet and the real world."

A few years make a difference. In 1997, the U.S. Supreme Court readily struck down the onerous Communications Decency Act, ruling that it would hinder free speech on the Internet. Yet four years later, the judiciary seems ready to limit the publishing of information across what the high court referred to as the "new medium of worldwide human communication."

Most of the controversy revolves around the Digital Millennium Copyright Act of 1998 (DMCA), a law designed to protect copyright holders' ability to put digital fences around their content and placing restrictions on what can be published online and what people may access.

The latest rulings support the DMCA, championing those who aim to own information, Levy said. "I think the direction that policy-makers are going is toward less free speech on the Internet."

A double jab
In the most-watched case, the 2nd U.S. Circuit Court of Appeals in New York upheld restrictions on the online hacker magazine 2600, limiting its ability to post or link to the DeCSS program for cracking DVDs.

The magazine and its publisher, Eric Corley, were ordered to remove all copies and links to copies of the program, but Corley's lawyers argued that his site--a news page for hackers and underground Net users--is protected by the First Amendment.

The appeals court did not agree, however. In a 71-page ruling issued Wednesday, the three-judge panel affirmed a lower court's decision against Corley, saying that DeCSS code is only partially protected speech and that such speech can be restricted on the Internet.

"The court spends 10 pages arguing that code is free speech," said Cindy Cohn, legal director for the Electronic Frontier Foundation. "Then, in the second half, they say, well, because the Internet is a more efficient way for people to get information and because it is more easy to use, we are going to give it less protection," added Cohn, who with dozens of lawyers submitted a brief arguing that the restrictions on Corley should be dropped.

Charles Sims, a partner with Proskauer Rose who represents the Motion Picture Association of America in its case against Corley, dismissed fears of free-speech restrictions, calling them a "false bill of goods."

"Copyright and free-speech law have coexisted now for 200 years," he said. "There is no free-speech problem with these statutes."

Yet the appeals court's own statements disagree with Sims'. Specifically, the court acknowledges there is a trade-off between allowing unfettered speech and preventing the misuse of protected copyrighted content.

"The fundamental choice between impairing some communication and tolerating decryption cannot be entirely avoided," stated the panel in its findings, adding, "it is not for us to resolve the issues of public policy implicated by the choice we have identified."

That is Congress' role, the court maintained. And so far, lawmakers have decided to strengthen content owners' rights at the potential expense of free speech.

Content threatened
With a finger testing the legal winds, many companies have been quick to take advantage of their new powers by quashing vocal online critics with threats of legal action under the DMCA.

When posters to the tech-issues Web board Slashdot published specifications for Microsoft's proprietary version of the security standard Kerberos, the software giant sent the site's owner a letter threatening a lawsuit under the DMCA. Slashdot resisted, and later Microsoft dropped its demands.

And British medical research firm Huntingdon Life Sciences temporarily shut down the Web site of anti-animal-testing group Stop Huntingdon Animal Cruelty by delivering a cease-and-desist letter in late August to the group's Internet service provider, alleging violations of the DMCA.

This week's second ruling seems to make issuing threats of legal action a no-risk proposition as well.

Judge Garrett Brown of the Federal District Court in Trenton, N.J., dismissed a lawsuit brought by computer science professor Edward Felten against the Recording Industry Association of America, the primary representative for the music industry.

Felten and his research group had taken part in a music-industry challenge to break several proposed technologies for protecting music. When he decided to publish his findings, the music industry threatened legal action against him.

When he decided to sue the RIAA, the music industry group claimed that it had not intended to actually sue. These statements and the fact that Felten did publish his paper in August without being sued convinced Judge Brown that there was no threat.

Yet many researchers and hackers already feel threatened. Worried that they could run afoul of corporate copyright lawyers, security academics and professionals are starting to pull published information that may be covered by the DMCA.

In September, two researchers removed software from their sites because the programs could have been construed as "circumvention tools" under the DMCA.

One, a professor of digital forensics, removed his evidence-gathering tool--dubbed Forensix--from his Web site. The other, a hacker for network-protection company Arbor Networks, pulled his own security-tool site in protest.

In June, fearing he could be held liable for violating the DMCA, the operator of a Web forum about digital video recorder TiVo asked posters to stop publishing information about how to copy video from the device onto other machines.

The only bright spot for free-speech advocates is a California appeals court ruling that called source code protected speech. The court overturned an earlier order barring online publishing of the DeCSS code.

Posting the program is the same as publishing other controversial statements and merits full constitutional protection, the appellate judges found.

Levy, the lead defense attorney in the case, is heartened by the ruling, but says he believes policy-makers and the courts need to take a step back and look at the issues outside of technology.

"Folks are looking at it a bit wrong," Levy said. "The danger may be magnified by the Internet, but it's not being created by the Internet."

In the end, having a set of laws for digital information on the Internet and a set of laws for the non-digital world doesn't make sense, he argued.

"We must have a uniform set of laws," he said. "New technology doesn't alter basic rights and tenets."