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Mississippi’s All Up in Your Google Activity

By Samia Hossain, William J. Brennan Fellow & Esha Bhandari | ACLU | August 3, 2015

An overzealous attorney general is trying to police online speech by capitalizing on the reams of data Google stores about its users.

James Hood, Mississippi’s attorney general has issued a whopping 79-page subpoena to Google asking for a massive amount of data about the identities, communications, searches, and posts of people anywhere in the United States who use its services, including YouTube and Google+.

The kicker? The state is asking for all this information for anyone speaking about something “objectionable,” “offensive,” or “tangentially” related to something “dangerous,” which it defines as anything that could “lead to physical harm or injury.” You read that right. The attorney general claims that he needs information about all of this speech to investigate Google for state consumer protection violations, even though the subpoena covers such things as copyright matters and doesn’t limit itself to content involving Mississippi residents.

Earlier this year, a District Court judge froze Mississippi’s investigation into Google. The state appealed the ruling to the U.S. Court of Appeals for the 5th Circuit, where we filed a brief today against the attorney general’s attempt to violate the First Amendment rights of the millions of people who use the Internet.

The case has already gotten attention because of Google’s claims that Mississippi is attempting to censor its editorial choices, by dictating what can appear in search results or on YouTube, for example. Our brief attempts to highlight an overlooked aspect of the case – that millions of people’s rights to free speech, anonymity, and privacy are also at stake.

The government is well aware of all the personal information that’s being stockpiled online and often serves subpoenas on private companies for information about individuals and groups under investigation. But the Constitution has established protections that keep the government from getting into our business without just cause, especially when our First Amendment rights to express ourselves freely and anonymously are at stake.

Yet as we’re seeing in Mississippi, the government doesn’t always play by the rules.

We are increasingly seeing efforts by law enforcement to engage in wholesale monitoring of certain groups online. Just a couple of weeks ago, we learned the Department of Homeland Security has been scrutinizing #BlackLivesMatter for constitutionally protected activity. This kind of surveillance chills the exercise of our First Amendment freedoms, especially considering how much sensitive and important speech – like political or human rights advocacy – takes place on the Internet.

Needless to say, “objectionable,” “offensive,” or “tangentially” related to something “dangerous,” are terms that are so broad that they could encompass a huge swathe of content on the Internet – and result in information about millions of people’s online activity being handed over to the government. Virtually any topic could be said to “tangentially” lead to physical harm or injury in certain cases –  from organizing protests to skydiving. Most importantly, the First Amendment protects the right to speak about dangerous, objectionable, and offensive things without fear that the government will be scrutinizing your speech or trying to find out your identity.

And let’s not assume it’s innocuous YouTube videos of skateboarding 6-year-olds, football highlight reels, or fireworks displays that the attorney general wants to waste his office’s time looking through – even though these would be covered by the subpoena. History has shown us that politically dissident and minority groups have been targeted for monitoring, and those are the groups that are most likely to be chilled from speaking. Politically active movements online, such as #BlackLivesMatter, often discuss strategy, organize protests, and post videos of police brutality (which certainly meets the attorney general’s definition of “dangerous”) online.

Not only that, but the right to online anonymity is threatened. Domestic violence support groups can provide a safe space online for victims to speak anonymously and honestly, including about the dangers of violence they face. Yet these activities could be seriously harmed if Mississippi is allowed to collect information about the people who engage in them. It’s no stretch to imagine that people will speak less freely if things like their email addresses, login times, and IP addresses could be handed to law enforcement whenever they say something that could be considered dangerous or offensive.

For these reasons, we’re asking the 5th Circuit to order the state to back off and keep the Internet a place where people can speak freely, without fear of government harassment or investigation.

August 4, 2015 Posted by | Civil Liberties, Full Spectrum Dominance | , , , , , , , , | Leave a comment

Florida Laws Target Online Video Anonymity: State-Based Site Blocking?

By Sherwin Siy | Public Knowledge | March 24, 2015

As EFF has noted, a troubling bill has been making its way through the Florida state legislature. The bill, with versions in both the state House and Senate, would require anyone “dealing in…the electronic dissemination of commercial recordings or audiovisual works” to post their “true and correct name, physical address, and email or telephone number” on their site.

The bill defines “commercial recording or audiovisual work” broadly—it’s basically any video meant to be seen by the public (whether for profit or not). The only thing it really excludes are short clips of exiting works or completely private videos. So it encompasses both a posting of my own complete home lip-synch video as well as my posting of a movie trailer or campaign ad.

Apparently, the plan is to make sure that no one can post online video that’s viewable in Florida without the world knowing just where to find you. The privacy and free speech implications of this are staggering—making it illegal to post anonymous video would chill a massive amount of valuable speech.

But what’s the purpose of this bill? Surely the state of Florida isn’t just interested in removing online anonymity, and specifically for video, is it? Is this an attempt like those in Idaho and Utah to prevent the spread of films showing animal abuse? An attempt, like the one in Texas, to go after people posting videos of police activity?

Maybe not, although the bill, on its face, would seem to cover all those cases and strip anonymity from the people posting such videos. But a closer look at the bill indicates something else at work. Failing to put your name on your site doesn’t seem to give the government the right to arrest or sue you; it gives the right to sue to the private party who “owns” or “licenses” the video. In other words, copyright holders and their business partners.

The para-copyright nature of the bill becomes clearer when looking at the staff legislative analysis of the bill, which specifically discusses copyright law, including federal preemption, the DMCA, and its enforcement. Despite it being classified as a “consumer protection” bill, it doesn’t discuss harms to consumers from anonymous videos.

So the Florida bills seem to represent another attempt to target alleged copyright infringers (note that a suit can be brought against someone merely “likely to” share a video) outside of the scope of federal law. And although the bill says that intermediaries like hosts and ISPs can’t be held liable for someone’s video-sharing under this new law, nothing in it says that they won’t be enjoined for the actual video-sharer’s actions. Given the long and growing trend of rightsholders seeking to enjoin non-liable parties in courts, it’s hard not to see this as moving in the same direction.

With a very similar law passed last year in Tennessee, the proposed Florida law seems to be part of a multi-state effort to find new ways of targeting intermediaries in an attempt to work around SOPA’s defeat. The fact that the state law tries to avoid being directly about copyright just means that other forms of speech get targeted, too. What happens when someone depicted in an unflattering campaign video starts claiming that they’re an “owner” via rights of publicity?

In other words, speech and privacy—fundamental values of our society—are merely collateral damage in the pursuit of site blocking—one particularly problematic technique only loosely connected to the values it is supposed to protect.

March 25, 2015 Posted by | Civil Liberties, Full Spectrum Dominance | , , | 2 Comments