nv1962

On freedom of speech, judges, borders, boundaries and blogs

This is something that grew out of a few comments I placed on Lorelle on Wordpress and later on Mike Young’s great blog, essentially on the issue of subsidiary liability. Unfortunately, the issue involves cross-border issues and perceptions, so I decided to pipe in one last time via ye olde trackback function in a more comprehensive fashion.

A few days ago, my curiosity was piqued by the headline of a story posted by Lorelle that was linked on the WordPress admin panel of my (this) blog: “WordPress.com Banned Again: Why Aren’t You Concerned?” It was the clause after the colon that got my attention, as it’s not too often a well-known (and widely respected) blogger laments lack of attention and/or concern for a circumstantial lock-out of arguably (subjectively) the world’s greatest blogging platform. Yes, I already had heard about the underlying case but no, it’s not exactly unique that one lawsuit or another, someplace in this world, threatens with (or actually imposes) a lock-out of a website. Not even in Brazil where, as mentioned under that last link, YouTube had been locked-out last year, in January.

Do I consider it business as usual, this regular popping up of news of muzzled websites around the globe? No, of course not. It’s not trivial or inconsequential, and yes, I do care about tendencies to maim a free flow of opinion (even while I’m not enamored with and not entirely sympathetic toward the concept of “free speech” as if it were some sort of absolute right). To wit, as a recent example, my angry post about the Indonesian government’s ultimatum to YouTube, inviting them to withdraw the otherwise hardly rewarding Fitna video from its servers, lest access to YouTube be banned nationwide (according to themselves, “YouTube has 71 million unique users each month and has the 6th largest audience on the Internet.”) Tangentially: I couldn’t find Lorelle’s pertaining post, angry or otherwise, about the Indonesian government’s ultimatum to YouTube; not even on the issue of also Fitna-related grave threats uttered by some parties not made public against UK-based LiveLeak, forcing them to suspend access to that craptacular movie as a temporary measure while LiveLeak’s team got their security ducks in a row (of course, that’s an example of non-governmental parties messing with the Internet but I believe it’s just as much stifling nonetheless!)

Sadly, therefore, it’s a fairly common phenomenon. Countless similar cases exist, of restrictive measures taken against upstream parties, that is: those parties one or more links beyond the party directly involved in the underlying, alleged offending action. If we cast the net a little bit wider, for example including self-imposed geographically targeted restrictions of access to content published on the Internet, it acquires almost routine proportions. I’m quite sure there’s at least one significant case to be found on average for every month over the past five years or so (i.e., since blogs or “the internet for self-publication” in general became a mainstream, easily available tool). I’m not bothering with crafting a Google search to that effect; I’m confident enough I could easily find 5 x 12 = 60 cases (if you check out a place like Global Voices Online you can safely put that number at least an order of magnitude higher than that!) which, by any reasonable standard, is a baffling and depressing lot.

Lorelle is very much right that it’s an important issue, and that it needs a vigorous answer; blogs are a good way to spread the message, and voice criticism, especially as it affects the Internet itself. So what’s my beef with Lorelle’s comments, then?

Well, to simplify: it’s two things, actually. First and foremost, I don’t believe she is sufficiently familiar with the specifics of either the particular case that set off this particular firestorm, or the generalities of the Brazilian judicial system, to back up assertions such as:

When the courts take generalized action, and we can only make assumptions on how techno-savvy they are, a lot of people can get caught in the mess, whether or not they want to. Blaming WordPress.com and free blog hosting services is not a reflection upon the quality nor integrity of the hosting service versus self-hosted. The fault lies with the courts for making general actions instead of specific actions directed towards the accused.

As a side note, I don’t like the underhanded sneer in the first sentence at the Brazilian judge’s familiarity with Internet technology. But that aside, what Lorelle is implying here that the judge has held WordPress.com to answer in lieu of the alleged offender in question. If Lorelle had dug deeper into the cloud of related posts, she’d have read that the judge indirectly tasked Abranet - a consortium of Brazilian ISPs and Internet carriers - with identifying and blocking the offending blog. It is Abranet (!) which took the position that, as there’s no readily available way (e.g. with a specific IP address) to lock out a specific hosted blog on a multiblog platform such as on WordPress.com, they intend to lock out access to WordPress.com altogether from Brazilian addresses.

To wit, Gustavo de Moraes’ own words on Tampablog, with my English translation underneath:

A ordem foi expedida para restringir acesso a um blog específico, porém, segundo a Abranet (Associação Brasileira de Provedores de Internet), para bloquear o acesso a este blog, não existe outra maneira se não bloquear acesso ao seu provedor, no caso, WordPress. An order was issued restricting access to a specific blog, for which according to Abranet (the Brazilian Association of Internet Providers) and to block access to this blog, there is no other way but to block access to its provider, in this case WordPress.

Even assuming on its face that Abranet is correct in not seeing any technological alternative but to block all of WordPress, the ethical aspect of whether Abranet is justified in taking such a shortcut “penalizing the whole classroom”, or not, is a wholly different issue. Even so, I believe that at least in theory, while cumbersome and expensive, it is possible to filter out subdomains - say: example.wordpress.com - at the DNS level of Brazilian ISPs. At least in theory, it’s possible to create a separate DNS server layer within the Brazilian network, to separately handle “contentious” blogs under a judicial blocking order. What I mean is that it’s not impossible. Again, another discussion is whether it’s ethically / morally acceptable, but that’s separate from the technical argument, as that is after all what Abranet is alleging here, to justify its sweeping approach. And that’s where exchanging technological expertise comes in.

Now, it’s not Lorelle who originally mistakes the judge as the “culprit”, as Gustavo de Moraes for example jumps the gun in his very opening sentence, stating that the judicial order might result in a large part of Brazilian blogs being blocked, i.e. those hosted on WordPress (even worse, the title of his post states bluntly: “WordPress blocked in Brazil”). I have seen other Brazilian bloggers make the same incorrect shortcut. For clarity’s sake, I think there’s something to say for keeping your facts straight in your presentation of your argument; “blaming” the judge here for ordering access blocked to a specific blog which, according to the wizzkids of Abranet can’t be done, is not exactly the same as accusing that judge of somehow ordering that access to (all of) WordPress as a whole should be shut out for surfers in Brazil.

Now, interestingly, in several articles posted on blogs I see references pointing in analogy to a previous, recent issue, also in Brazil, concerning the publication of the set of regulations that will be in effect to govern the upcoming local (municipal) elections in October there, by the Brazilian electoral judicial college (Tribunal Superior Eleitoral or TSE). I think that analogy is all the more interesting, as I believe it also entails a bad case of fudging the forest for the semantic trees. In a pertaining English-language post, Paula Góes writes:

[The TSE] has just passed the regulations for voting, and again, the opportunity to better discuss electronic political propaganda through the Internet was missed. Tools like Twitter, Orkut, Facebook, You Tube, electronic newsletters, text messages, blogs and other ’social web’ facilities - technologies which nowadays are essential for voters to inform and empower themselves - were not subject to a more comprehensive legislation and, as a result, these are again left in limbo.

So far, nothing to object. But then she goes on to quote a hyperventilating Idelber Avelar, which she translated as saying:

Either I no longer understand the Portuguese language or the Supreme Electoral Court has just prohibited political campaigning on the Internet with the exception of a page for each candidate. Any expression of electoral preference that could be construed as a campaign is forbidden on blogs, orkut, Facebook.

Avelar overlooked option three here: he might want to take up Law for more in-depth study. What the TSE has framed in its regulations are the official candidates’ own campaigns. How he confuses the issue of (by the way: in Brazil very clearly protected) free “expression of electoral preference” by citizens with the candidates’ political campaigns is beyond me, but that’s exactly what he does. Fortunately, in her excellent and well-documented post, Paula Góes lays out toward the end of her post where the core problem is in the resulting hysteria over the end of Internet as Brazil knows it, by way of quoted observations from one lawyer specialized in election law and, most notably, Jorge Alberto Araujo - a judge ordinarily dealing with labor-related issues - and who explains the necessarily distinction between freedom of expression by citizens (and hence, their right to freely express preferences over the Internet) and the “official campaigns” by the candidates themselves.

If Idelber Avelar had taken the trouble of reading past the first articles of the TSE’s published regulations, he’d have come across Article 5, which requires any and all “propaganda” (i.e., by candidates’ official campaigns) to include a clear identification; in terms of the US, that’s a bit like the very common inclusion of the tag “I’m so-and-so and I approve of this message” that candidates include in their campaign ads on TV and radio. It’s a bit mystifying how any level-headed person could confuse campaign ads with individual expression of political opinion, but I guess that’s a different issue.

Of course, there’s a deeper issue in that “election regulation” issue, on which Idelber Avelar also touches, and which he perhaps even intended to highlight: namely that the judiciary regulating elections in in Brazil don’t seem to have carefully thought through the characteristics and therefore the implications of web-based campaigns; in other words, whether those tight regulations (written with traditional media in mind and extended to the Internet) would be able to fit the political “viral Internet marketing” style that are a well-known staple of US presidential campaigns. In other words, I believe that the case can be reasonably made that those TSE regulations are so backward looking in their mindset and scope, that they’d stifle the candidates’ campaigns.

All those by now fairly well-known so-called Web 2.0 services (in which I happily include embeddable YouTubes alongside Twitters) would be in limbo; where do you draw the line in placing a corset? Would making a “badge” available for bloggers to copy and use (as I have at the moment of this writing, proudly announcing my support as well as asking it for Senator Clinton, in her bid for the US Presidency, as I have before during the campaign in Spain for the happily reelected Prime Minister Zapatero and his PSOE party) place a candidate in hot water, for example?

Still, such is a very different angle than to trumpet around with anguishing headlines that citizens’ freedom of expression is jeopardized, and to suggest that blogs (i.e., by “ordinary” citizens) would be somehow banned from blogging about their objects of (dis)affection during the campaign.

That is a tragic and very counterproductive confusion of the topic at hand; I believe it’s also clear (or should be) to a cursory reader that it’s a very unnecessary confusion too, as a bit of more careful reading would have brought that to light. And when a “major” blogger, such as Lorelle VanFossen, picks up her megaphone to pipe in on the issue, I think it’s not too unreasonable to expect that little extra effort to have been made. That’s what we expect our media to do - or at least I do, even when that expectation isn’t honored by mainstream US media to the degree they should.

Now, this “confusion” of what one’s actually arguing about might well be written off as a case of reliance on blogs posted in a foreign language, for example in the case of Lorelle. But aside from that “noblesse oblige” argument I mentioned earlier, there’s another: Lorelle bluntly accuses bloggers of being lazy and dumbed down no less, in her characterization of the reaction by “the blogosphere” to cases like the one in Brazil potentially affecting access to WordPress:

I think bloggers around the world have become apathetic. Lazy. Uninspired. Dumbed down.

Well, if the shoe fits… I’d proffer that knowing what you’re getting so much worked up about wouldn’t harm, either, especially when it concerns something somewhere else, under a different legal system. And I think I’ve made that point of order clear in my own comment, also.

As I said at the beginning, I have two issues with that second half of Lorelle’s post. The second is more about the tone in which it is set, which I believe has tinges (or: gives the impression) of a bizarrely paternalistic and condescending view on the application of the Law in countries other than the US. For example, that embedded sneer I mentioned at the beginning, where in my mind the statement that “we can only make assumptions on how techno-savvy they are” practically drips winks and nudges about those Neanderthal judges in foreign backwater places where they don’t know about the intertubes.

Given the fertile, easily combustible conjunction of expressions like “free speech,” “foreign country” and (because that’s what WP is after all) “US-based company,” I picked up on that tone in combination with the, eh, “out of focus” issue I mentioned earlier here, as I surmised it wouldn’t take too long for others to throw in pearls of patriotic superiority unencumbered by insight into the matter. Indeed, Kevin Bowes obliged:

In my opinion: 1) As others have said, this is a problem when you join such a blogging service. It’s kind of like being an American: people are just going to see you as evil regardless of whether you are or not. Similarly with wordpress.com, Brazil is going to see you as an amateur porn star whether you are or not. 2) This is really the Brazilians’ problem. If they want free speech, they’re going to have to fight for it. Interference/bullying from Americans possibly will make matter worse. 3) How many wordpress.com blogs are in Portuguese anyway?

Not bad for such a pithy comment: take a pinch of good old “America-hating” with a scurrilous combination of “amateur porn star” and “Brazil”, add a twist of unfounded inference that “free speech” is unknown in Brazil (actually, it’s not “free speech” as Brazilians along with many French and Spanish speaking countries prefer a more precise definition as “free expression of opinion”), and top it off with a hint of Brazilian techno-illiteracy (it’s laudable Kevin didn’t go for a more direct “do they actually have electricity down there?”).

More sagely, and in his comment, Jason hit the nail on the nose: it’s “about the big E” - education. For example, where Lorelle in a comment asserts that:

The fault lies with the courts for making general actions instead of specific actions directed towards the accused. It’s like penalizing the whole classroom for one bully in the class, but this is much bigger.

Enough beating that poor horse - I think it is clear now on where I lay “the fault” in the case of that Brazilian blog, as the judicial order did target a single “accused” blog. By inference, I argue that to blithely slam a judge in Brazil, for one’s own lack of initiative in understanding the issue, unfairly penalizes Brazilian judges by a misguided class bully…

On a semi-related note: I don’t consider bullying any less an issue than clumsy legal manhandling of new technologies, as bullying in schools is the area where molesters, criminals and sociopaths in general get either a firm lid on the nose, or society invites mayhem years later, at a dear cost. And looking at how YouTube et al has quickly become a hotbed of little criminals proudly posting clips of beatings they actually organize as a badge of dubious honor, it’s not an entirely unrelated issue, either, as legislators, governors and judges alike struggle with the ugly transformed phenomenon of local “classroom” bullying to its projection all over the world via, precisely, the Internet.

Just to avoid any misunderstanding: this long winded piece is not at all aiming criticism because of the fairly sensible comments made by Lorelle in the first half of her post, under the subheading “What Responsibility Should WordPress.com Bear?” as I concur with her practical approach to first and foremost educate and inform pertinent judicial agents, also and fundamentally based on Celso Bessa’s first of his three-point suggestions in his open letter: “providing the Brazilian Court with a technical report and knowledge support about the best way to handle the blocking order of this specific blog, without compromising the access to wordpress.com”.

But when commenting on a legal matter, one should keep a straight line of view on the topic - for instance, not confusing courts abroad with “the international courts”, as Lorelle does (in the first of the two bullet points she mentions as the “agenda” for her post, at the beginning). International courts can be found, for example, in The Hague; sadly, the International Court of Justice isn’t prepared to remedy such cases, as they can only deal with cases among sovereign states - not among individual parties (even when one of them actually is a government or governmental agency).

Or, when commenting on a self-raised question, such as: “Should WordPress.com be responsible for establishing a “court of public opinion” for WordPress.com bloggers?” The minute WordPress.com started interacting with the greater public, it became automatically (pun intended - sorry) potentially liable. Which is precisely why WP’s legal counsel (and I daren’t assume WP didn’t consult lawyers!) advocated for a published and enforced set of terms of service. This (my) blog may also be liable, if and when some sorry cretin posts offensive stuff and I fail to remedy it; in fact, whether it’s free or not (as in “free beer”) isn’t too important when a judge (knock on wood…) takes up such a case.

In conclusion: while I agree that it is both practical and effective to inform the members of the judiciary (”WordPress.com must provide information to the courts on how to block individual and specific WordPress.com blogs”) I also think it’s germane to ponder on the practical boundaries of practical responsibility. In this specific case, Abranet seems an excellent target for some continuing education - as well as the community of bloggers as a whole, on the practicalities of barring access to a subdomain.

Maybe a conference call with the good people at DNSstuff.com is a good place to start. One word of warning: DNS is a scary place. Be prepared for tremendous complexity…

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