Monday, December 23, 2013

Quackers and Crackers: The Duck Dynasty Controversy

I've never seen the TV show Duck Dynasty, but from what I gather, it’s a coalescence of ZZ Top meets the Kardashians, with a bit of The Beverly Hillbillies thrown in. Judging from the publicity stills, the cast is composed of a family of six scraggly bearded rednecks. Duck Dynasty is what TV executives dub a reality show, which means it bears no relation to reality or anything in real life as you and I perceive the world around us. The show is in the news because of an interview one of its cast members gave to GQ Magazine (putting aside the obvious question of why a publication aimed at an audience of urbane gentleman would showcase scraggly bearded rednecks who hang out in marshes).

Phil Robertson, the self-described “bible-thumper”, in the course of the interview told GQ :

“Everything is blurred on what’s right and what’s wrong . Sin becomes fine. Start with homosexual behavior and just morph out from there. Bestiality, sleeping around with this woman and that woman and that woman and those men.” Then he paraphrases Corinthians: “Don’t be deceived. Neither the adulterers, the idolaters, the male prostitutes, the homosexual offenders, the greedy, the drunkards, the slanderers, the swindlers—they won’t inherit the kingdom of God. Don’t deceive yourself. It’s not right.”

This upset certain liberals and gay advocacy groups. Robertson also commented about how happy blacks were in the days of the Jim Crow South:

“I never, with my eyes, saw the mistreatment of any black person. Not once. Where we lived was all farmers. The blacks worked for the farmers. I hoed cotton with them. I’m with the blacks, because we’re white trash. We’re going across the field.... They’re singing and happy. I never heard one of them, one black person, say, ‘I tell you what: These doggone white people’—not a word!... Pre-entitlement, pre-welfare, you say: Were they happy? They were godly; they were happy; no one was singing the blues.”

This doesn’t seem to have bothered anyone, including blacks. Perhaps it is because they feel our “post-racial” society has advanced far enough beyond those days that it no longer matters what nonsense a cracker in a flannel shirt spouts. Or maybe homosexuals are a tad more sensitive.

Regardless, the ensuing din has proven politics makes strange bedfellows. Liberals, who should be supporting free speech, have declared that’s only true when it’s speech they believe in; while conservatives, who would normally argue a business should act in its shareholders’ interests by not alienating sponsors, instead are aghast a TV network would remove a potentially offensive TV star from the air.

Around digital water cooler known as the Web, discussions have revolved around whether Robertson’s First Amendment rights had been violated. This is what’s known as a red herring. The TV network is, of course, free to use its business judgment in deciding whether to dismiss an employee and the First Amendment is not applicable to corporations. The First Amendment is one of 10 amendments, known as the Bill of Rights, which the Founding Fathers tacked onto the newly drafted Constitution to placate the concerns of some of the colonies so they would ratify it. The colonies, having just broken away from England, feared a strong central government and wanted some guarantees that there would be restrictions and limitations on the powers of the proposed federal government. Thus, the First Amendment is a restriction on what the government may do, and not a restriction on what individuals or corporations may do. That’s why it begins “Congress shall make no law…” and not “Corporations shall not…” So, there is no First Amendment issue involved here.

However, the First Amendment is not synonymous with free speech. What the First Amendment does, is protect the concept of freedom of speech from encroachment by the government. This is in recognition of the importance of the concept of freedom of speech –  to our society, and to democracy at large. But that concept goes beyond the First Amendment. As the French philosopher René Descartes said, “cogito ergo sum” or “I think, therefore I am”. Man is an intelligent creature, and as such, cannot help but think. It’s only natural that individuals wish to verbalize their thoughts. When individuals encounter facts, and interpret their perception of those facts, they arrive at opinions. Facts are objective statements; opinions are subjective interpretations of those facts. Thus, opinions cannot be right or wrong, or true or false. Their beliefs are often the result of indoctrination at an early age of a societal or religious belief system. So when self-professed bible-thumper Robertson says homosexuality is a disgusting sin, he is reiterating what he has been brought up to believe and what his religion has instilled within him. His comments are not any different from what the world’s major religions have preached for millennia or what the majority of the world agreed upon in the previous centuries. Even in the progressive United States, the American Psychiatric Association as recently as 1973 classified homosexuality as a mental disorder. While that view has changed in much of America, they obviously didn't get the memo in Russia, let alone in the Bayou.

If I were gay, I wouldn't be concerned about the ravings of a scraggly beard redneck who claims being homosexual will keep me out of his make-believe members only club in the sky after I die. I’d be more concerned with discrimination by people trying to keep me out of real places during my lifetime, and let the afterlife take care of itself.

However, what I find more distressing is the Orwellian concept of politically correct thought police penalizing expression. This inevitably results in a chilling effect, causing individuals to self censor their thoughts and speech, which is the antithesis of a free society. Certainly, some thoughts and speech will be offensive, ill-founded, and inciteful rather than insightful. But the free exchange of ideas is essential to the advancement of society and the proper functioning of a democracy. Justice Oliver Wendell Holmes, Jr.  proposed the concept of a public “marketplace of ideas” where individuals could freely exchange their thoughts and the rational ones, like cream, would rise to the top and force the rhetoric to sink. Holmes’ concept advocates more speech as the best rebuttal to offensive speech.

I don’t want to live in a society where individuals are forced to repress their thoughts. I prefer to know which individuals, especially public figures, hold views abhorrent to me. Let them self-identify as bigots or racists, if they are foolish enough to do so.

As the gatekeeper to a medium that chooses which individuals to allow be heard by society, TV networks should be mindful of the chilling effect of punishing those individuals for expressing their opinion – however odious – in forums other than their own. As a free society, we need to jettison political correctness and allow public discourse, accepting that there will be opinions at variance with our own.   

Saturday, December 21, 2013

A Christmas Treat!

Christmas is a special time of year, and in keeping with the festive occasion, I suggest you download some appropriate reading material, like this unusual collection of skewed Christmas tales. Every year, Keith writes a special Christmas short story, and now you can read them all in this Kindle e-book.

These warped Christmas classics include "The Trial of Santa Claus", "Far From Home", "A Christmas Carol", "A Christmas Present for Ashley," "Christmas at the Mall". Click the image to purchase.

Monday, December 16, 2013

Did Your Ex Post Your Nude Photo Online?

In Colonial America, public shaming was a popular punishment, evoking imagery of men and women locked in the stocks in the public square or adulteresses branded with a scarlet letter “A”. Public shaming has resurfaced, but today the public square is the Internet, and the shaming is done not by government as punishment but by sleazy businesses for profit. These sites display embarrassing photographs of individuals and then charge them a fee for their removal.

The two main variations of exploitation Web sites are revenge porn sites and mugshot sites. Revenge porn Web sites solicit nude photographs of ex-lovers or former friends. Mugshot sites download their photos from police Web sites and databases. Revenge porn sites argue they're only displaying what others have uploaded and thus fall under the safe harbor of a federal statute, the Communications Decency Act (CDA), which protects Web site owners from defamation claims for materials posted by others. The mugshot sites claim, while they might be the ones posting the images, mugshots are public records, freely accessible under state Open Record Laws.

No one wants family, friends, or prospective employers to stumble across their mugshot or nude photos on the Web. That’s why these exploitation Web sites charge people to remove the photos they appear in. Exploitation sites are like modern day grave robbers who dig up people’s shameful pasts and charge to rebury the skeletons. You might think charging to remove humiliating images displayed by these sites is extortion, but since the site operator isn't applying force or coercion, it doesn't meet the legal definition of extortion. But even if removed from one exploitation site, the picture may pop up on another, leaving the aggrieved individual trapped in a game of “Whack-A-Mole”.

The adage “The Internet is forever” rings true: The images may still appear in search engine caches; on mirrored sites; in Web archives; or worse, have gone viral, being posted on multiple blogs, Web pages, and social media. For example, The Lubbock Lineup Facebook page digitizes public humiliation, juxtaposing mugshots with “selfies” from an individual’s Facebook page under the heading “I Promise I Look Much Better on Facebook”.

The intent of revenge porn sites is to embarrass the victim. Some sites maximize the humiliation by posting the person’s name and screenshots of, or links to, her social media pages; including contact information and school or workplace, or allow visitors to post anonymous harassing comments. Even more humiliating, because they compile so much information on the victim, revenge porn sites often pop up at or near the top of a Google search for an individual’s name — visible to family, friends, classmates, co-workers, customers, clients, and current or potential employers. The result can be ruined reputations and careers. Victims also face the threat of stalkers and harassment.

While the site owners are protected by the CDA, there are other legal strategies victims might employ. Under federal copyright law, if the photo was taken by the victim (a “selfie”), then she’s automatically considered the copyright holder with exclusive rights to distribute and display the photo. The CDA doesn’t bar a copyright infringement claim, so she could force the site to remove the photo by sending it a DMCA takedown notice. If the site fails to do so, she can sue for infringement. The downside to this approach is, it’s only available to the one who created the work (the photographer). If anyone other than the victim, like an ex-boyfriend, took the photo, she can’t claim infringement. Also, although the takedown notice should result in the photo’s removal, she’ll only be entitled to damages if she had registered the photo with the U.S. Copyright Office prior to the infringement. This is impractical, as one is unlikely to submit a copy of a humiliating photograph to the Copyright Office to be archived indefinitely under her name in the Library of Congress, or to suspect a particular photo will be published online until after the fact.

Some revenge porn sites add personal information, screenshots, or links to victims’ social media accounts to the content uploaded by third-parties. Taking a hand in developing the content might destroying their CDA immunity.

Of course, victims can sue the person who posted the offensive photos for invasion
of privacy and seek monetary damages, but they'd have to be able to identify the poster and prove he uploaded the photos. The downside is, the victim, as a plaintiff in a civil suit, would be named in the public record with a description of the posting, and a judgment against the poster would have no effect on the Web site, which might continue to display the photos.

California passed a law in late 2013 making posting revenge porn a misdemeanor
punishable by a $1,000 fine or up to six months in jail, but it applies only to photos taken by others (not to selfies sent to an ex) and posted “with the intent to cause serious emotional distress” (thus raising a possible lack of intent defense). The law doesn’t target revenge porn sites, which remain protected by the CDA.

Last week, California prosecutors charged a man, not under the state’s new law, but with 31 felony counts of conspiracy, identity theft, and extortion for operating a revenge porn site. The year-old site boasted more than 10,000 “nude and explicit photographs of others without their permission” according to court documents. The man was charged with obtaining identifying information with the intent to annoy or harass because his site required the victim be identified by name, age, and other information. He charged up to $350 to remove the photos, receiving “tens of thousands of dollars.”  

 To learn more about revenge porn sites and mugshot sites, buy my new book, Issues in Internet Law: Society, Technology, and the Law, 8th Edition.

Issues in Internet Law

Saturday, December 7, 2013

Private Eyes Are Watching You

“I’ve misplaced my phone again,” my friend Stallion said. “I don’t know why they call it a smart phone; it’s always getting lost.”

“There’s an app for that, you know.” I had learned there was an application for just about everything on the Internet, other than a “happy” app that would finally make those annoying angry birds happy.

“What’s it called?” Stallion asked.

“Private Eyes Are Watching You. Just think of the old Hall and Oates song. You can download it from the NSA Website.”

“The National Security Administration has an app for finding misplaced mobile phones?” Stallion asked in surprise.

“Why, sure. It makes sense. The government mandated every mobile phone have a GPS chip inside. It can locate any cell phone on Earth in seconds.”

“But suppose someone has stolen my phone. It could be anywhere in the world by now.”

“No problem!  The NSA collects data on the location of five billion mobile phones worldwide, every single day! They have a database that stores the physical locations of hundreds of millions of smart phones and tablets. I’m sure your device is already in the NSA database.”

“You mean, for years, the NSA has known where I’ve gone and whom I’ve phoned or texted?”

“Sure. Using your own phone, the NSA can retrace your movements and expose hidden relationships among people you call or text. The NSA software triangulates calls based on the location of the nearest cell towers. Its powerful analytical tool called CO-TRAVELER searches for known associates by tracking individuals whose movements intersect. But don’t worry; I’m sure they’d never tell your wife. Well, pretty sure.”

“You mean the NSA is tracking my visits to doctors, private business meetings… even hotel rooms? That sucks.”

“Well, you had to realize your smart phone would rat you out, one day. Mobile phones broadcast their location even when you’re not sending calls or texts. You’re walking around with a homing beacon in your pocket, dude.”

“Still, I’m sure the government must need that data to track terrorists.”

”Sure. After all, 5 million phones a day times 365 days in a year… how many terrorists would you say that makes out there? Already, the NSA database has filled 27 terabytes—twice the size of the text content in the Library of Congress’s print collection. But that’s just a start – according to The Washington Post, NSA Chief Keith Alexander said an even broader collection of such data "may be something that is a future requirement for the country". The NSA's FASCIA database stores trillions of device location records and metadata. I'm sure they can help find your lost phone." 

“Still, that’s kind of creepy.”

“If you think that’s creepy, you should check out”