Code as Free Speech

The FBI hearing over Apple encryption is now postponed, but one of the arguments in that case – as they Electronic Frontier Foundation advanced it – was that code is speech, and should be free speech:

The Supreme Court has rejected requirements that people put “Live Free or Die” on their license plates or sign loyalty oaths, and it has said that the government cannot compel a private parade to include views that organizers disagree with. That the signature and code in the Apple case are implemented via technology and computer languages rather than English makes no difference. For nearly 20 years in cases pioneered by EFF, the courts have recognized that writing computer code is protected by the First Amendment. In a brief from EFF and leading technology experts, we have told the court considering Apple’s case that forcing the company to write and sign a new operating system for the government is akin to the FBI dictating a letter endorsing backdoors and forcing Apple to sign its forgery-proof name at the bottom.

See, Code Is Free Speech @ TIME.

Here’s that brief:

FCC Chairman’s 3.10.16 Proposal on ISP Use of Customer Data

Last week, Federal Communications Chairman Tom Wheeler informally published a proposal to restrict ISP use of customer data:

If adopted, these would be the first privacy rules for Internet service providers, resulting largely from last year’s net neutrality regulations that expanded the Federal Communications Commission’s oversight authority over the industry. (Those rules are currently pending in court.)

Thursday’s unveiling of the proposal from Chairman Tom Wheeler is just a first step: The FCC is expected to vote to formally propose this plan on March 31, soliciting public comments on a variety of questions about how the rules should work before the final version gets drafted….

SeeFCC Proposal Would Limit What Internet Providers Can Do With Users’ Data @ NPR.

Here’s the draft released last week, and online at

Download (PDF, 50KB)

The Big Picture on IP

David Post, writing at the Volokh Conspiracy, recommends a recent paper from Mark Lemley (“IP in a World Without Scarcity“) that summarizes the state of intellectual property law.

It’s a sound recommendation, and well worth following to Prof. Lemley’s paper.

Here’s Post’s assessment:

If I were still teaching a class on IP law, or Law and the Internet, I think I’d start with Lemley’s paper, in its entirety. Much — maybe even most or all – of what he talks about has been said before; but like all really effective summary pieces, it imposes order on some otherwise very chaotic disconnected threads, so that the Big Picture comes very, very clearly into focus. Most highly recommended.

See, from David Post, What everyone needs to know about intellectual property law @ Volokh Conspiracy.

Mark Lemley’s paper is available at the SSRN, to read online or download.

Answering an Objection to the Language of Reddit’s Expanded Ban

In last week’s post, defending Reddit’s decision to expand its content ban, I promised that I’d answer an objection to that expanded content-restriction policy

The objection to that content policy comes from Gizmodo, in a post from Annalee Newitz entitled, Reddit Bans /r/Coontown For All the Wrong Reasons

Ms. Newitz, sensibly, isn’t opposed to a ban, for subreddits like /r/Rapingwomen or /r/Coontown; she feels that the content-restriction policy that CEO Steve Huffman promulgated amounts to a “terrible set of policies.” 

She contends that the new August restrictions were unnecessary, and that prior content restrictions would have allowed Reddit to ban like /r/Coontown because

Huffman could have banned /r/Coontown under the original set of rules, which state that Reddit can ban forums “that incite harm against others.” But because he wasn’t willing to admit that racism incites violence, he wound up inventing a crappy new rule — based on whether subreddits are “annoying” or “make Reddit worse” — that will actually do more harm than good.

Reddit made the right decision to ban /r/Coontown, but to base a policy against racist speech on the theory that it leads to violence is unnecessary, and puts a website in the business of contending for or against arguments of social science. 

A broader definition of what’s unacceptable, without a tie to inciting violence, assures that a private publisher’s freedom of act – in defense of its brand name, customer goodwill, etc. – will not require a link between speech and possible reader conduct.  Advising a private publisher-client to establish a content-restriction that requires a link between speech and violence would only limit a private publisher’s ability to act.  Publishers are not social scientists, nor need they be. 

There are, candidly, some derogatory terms that a private publisher – in this case, crucially, a private entity like Reddit –  might mish to limit that do not have a link to violence. 

That’s why Reddit’s latest content-restrictions, ones that allow a ban apart without a link to violence, are ones that I would have advised: they offer freedom of action to the publisher. 

It’s true, of course, that CEO Huffman might ban too much, but the need to maintain readership will act as a brake on his restrictions. 

In any event, none of this involves state action.  If private publishers limit too much, there are sure to be others that will spring up as alternative havens.  (That’s one reason state action is so different: one wouldn’t expect new governments to spring up in response to state censorship.)

A publisher-client’s best interests are served through flexible policies that afford discretion in implementation. 

That’s precisely what Reddit’s new content restrictions allow.

Others have tried, and now Facebook enters the workplace (formally) with Facebook@Work

At TechCrunch, Ingrid Lundgren reports on Facebook’s platform for businesses to create their own social networks.  She offers lots of useful detail, and correctly notes that some competing offerings in this space have failed (or just haven’t taken off):

About six months ago, we reported that Facebook was working on a new product aimed squarely at the enterprise market under the working title, “FB@Work.” Now that product is officially coming to light: today the company is launching new iOS and Android apps called “Facebook At Work,” along with a version of Facebook at Work accessible via its main website, which will let businesses create their own social networks amongst their employees that are built to look and act like Facebook itself.

(Facebook At Work is now available for download on iOS, and we’ll update with a links to the Andrid version once it’s live, though both are usable via a limited pilot to start with. Check out Josh’s follow-up story for more screenshots, details on privacy, and analysis.)

Employers can create separate log-ins for employees to use with their Work accounts, or users can link these up with their other profiles to access everything in one place.

The product puts Facebook head-to-head with the likes of Microsoft’s Yammer, Slack, Convo, Socialcast, and a huge number of others who are trying to tackle the “enterprise social network” space. Even LinkedIn conveniently let drop last night that it too was looking atbuilding a product for coworkers to communicate and share content (but not chat, as a LinkedIn spokesperson tells me). Not all of these have been a hit: Lars Rasmussen, the engineering director at Facebook who is heading up the project, had in his past once headed up one of the failed efforts at an enterprise social network, Google Wave….

“Facebook at Work’s strength is that we’ve spent ten years and incorporated feedback from 1 billion active users,” he says. “All of that is embedded now in the same product but adapted for different use cases.”

And it’s actually used by staff. “When Mark [Zuckerberg, the CEO] makes an announcement he just posts it on Facebook at Work,” Rasmussen says.

The whole post, Facebook Unveils Facebook At Work, Lets Businesses Create Their Own Social Networks @ TechCrunch, brims with detail.