david french – Techdirt (original) (raw)

Neil Gorsuch Highlights Aaron Swartz As An Example Of Overreach In Criminal Law

from the wasn't-expecting-that dept

Well, here’s something unexpected. Apparently Supreme Court Justice Neil Gorsuch has a new book coming out this week called “Over Ruled: The Human Toll of Too Much Law.” And, one of the examples in the book is about the ridiculous criminal case against Aaron Swartz and his eventual tragic decision to take his own life while facing the possibility of decades in prison for the “crime” of downloading too many research papers while on a college campus that had an unlimited subscription to those research papers.

At the time, we wrote about the travesty of the case and the tragedy of how it all ended.

But it’s still somewhat surprising to find out that the case has been wedged in Gorsuch’s mind as an example of prosecutorial overreach and over-criminalization.

David French has an interview with Gorsuch about the book in the NY Times, and the Swartz case is the first example Gorsuch brings up:

French: This was an interesting element of the book to me and something that people who are not familiar with your jurisprudence might not know — it’s that you’ve long been a champion of the rights of criminal defendants. It struck me that some of the stories here in the book, of the way in which the complexity of criminal law has impacted people, are among the most potent in making the point. Is there a particular story about the abuse of criminal law that stands out to you as you’re reflecting back on the work?

Gorsuch: I would say Aaron Swartz’s story in the book might be one example. Here’s a young man, a young internet entrepreneur, who has a passion for public access to materials that he thinks should be in the public domain. And he downloads a bunch of old articles from JSTOR.

His lawyer says it included articles from the 1942 edition of the Journal of Botany. Now, he probably shouldn’t have done that, OK?

But JSTOR and he negotiated a solution, and they were happy. And state officials first brought criminal charges but then dropped them. Federal prosecutors nonetheless charged him with several felonies. And when he refused to plea bargain — they offered him four to six months in prison, and he didn’t think that was right — he wanted to go to trial.

What did they do?

They added a whole bunch of additional charges, which exposed him to decades in federal prison. And faced with that, he lost his money, all of his money, paying for lawyers’ fees, as everybody does when they encounter our legal system. And ultimately, he killed himself shortly before trial. And that’s part of what our system has become, that when we now have, I believe, if I remember correctly from the book, more people now serving life sentences in our prison system than we had serving any prison sentence in 1970. And today — one more little item I point out — one out of 47 Americans is subject to some form of correctional supervision (as of 2020).

I disagree with Gorsuch on many, many things. On the two big internet cases from this last term, Gorsuch joined the Lalaland takes of Justices Alito and Thomas (in both the Moody and the Murthy case Gorsuch was a third vote besides Alito and Thomas towards nonsense). So, it seems a bit shocking for Gorsuch to be somewhat on the side of Swartz, who would have eviscerated Gorsuch’s position in both of those cases.

Of course, Gorsuch is also wrong that Swartz “probably shouldn’t have done that.” MIT had a site license that enabled anyone on campus to download as many articles from JSTOR as they wanted. It didn’t say “unless you download too many.”

But, at least he recognizes how ridiculous the criminal lawsuit that Swartz faced a dozen years ago is. For well over a decade, we’ve been highlighting how dangerous the CFAA is as a law. It is so easily abused by prosecutors that it’s been dubbed “the law that sticks.” It sticks because when there is no real criminal prosecution under other laws, prosecutors will often cook up a CFAA violation, as they did with Aaron. And it remains ridiculous that, to this day, nothing has ever been done to prevent another Aaron Swartz-type scenario from happening again.

Perhaps, with Gorsuch bringing it up again in his book and in this interview, it can renew some of the interest that showed up in the months following Aaron’s untimely death to make real changes to the laws that caused it. Having a Justice like Gorsuch calling out the terrible and ridiculous situation the CFAA caused seems like a good reason for Congress to revisit that law, rather than cooking up new nonsense like KOSA.

Filed Under: aaron swartz, cfaa, criminal overreach, david french, neil gorsuch, too much law

You Can’t Wish Away The 1st Amendment To Mandate Age Verification

from the the-1st-amendment-is-not-that-flexible dept

So, we’ve been talking a lot about age verification of late, as governments around the world have all (with the exception of Australia?!?) seemed to settle on that as a solution to “the problem” of the internet (exactly what that problem is they cannot quite identify, but they’re pretty sure there is one). Of course, as we’ve explained time and time again, age verification creates all sorts of problems, including undermining both privacy and speech rights.

That’s why it was little surprise to us (though we warned the politicians pushing these bills) that a series of age verification bills have recently been found to be easily and clearly unconstitutional under the 1st Amendment. And it seems likely that other such bills will soon meet a similar fate.

David French, who recently became a NY Times columnist and is a long term free speech defender/constitutional litigator, has apparently chosen as his weird hill to die on, that the 1st Amendment should not stop age verification laws. While there are many, many things that I disagree with French on, historically, he’s been pretty good on internet speech issues. So it’s a little weird that he’s so focused on undermining the 1st Amendment over his own views regarding adult content.

Before the recent set of rulings reaffirming that these laws violate the 1st Amendment, French had suggested that age verification laws around adult content should be found to be constitutional. But, now that multiple courts have ruled otherwise, French took to the pages of the NY Times to argue that courts are misreading longstanding 1st Amendment precedents and that we should be able to mandate age verification and legally block kids from seeing adult content online.

So why not bring our offline doctrines to the online world? If we can impose age limits and age verification offline, we can online as well. If we can zone adult establishments away from kids offline, we can online as well. And if we do these things, we can improve the virtual world for our children without violating the fundamental rights of adults.

The underlying argument is that the precedential rulings in Reno v. ACLU and Ashcroft v. ACLU (the cases that killed as unconstitutional two earlier attempts to lock up the internet for kids: the Communications Decency Act and the Child Online Protection Act) were narrower than everyone believes, and were based on the state of technology at the time, rather than where it is today:

Our nation tried this before. In 1996, Congress passed the Communications Decency Act, which — among other things — criminalized the “knowing” transmission of “obscene or indecent” material online to minors. In 1997, however, the Supreme Court struck down the act’s age limits in Reno v. A.C.L.U., relying in part on a lower court finding that there “is no effective way to determine the identity or the age of a user who is accessing material through email, mail exploders, newsgroups or chat rooms.”

The entire opinion is like opening an internet time capsule. The virtual world was so new that the court spent a considerable amount of time explaining what the World Wide Web — when was the last time you heard that phrase? — even was. The internet was so new and the technology so comparatively primitive that the high court, citing a U.S. District Court finding, observed in its opinion that “credit card verification was ‘effectively unavailable to a substantial number of internet content providers.’”

Indeed, critical to the Supreme Court’s opinion was the lower court’s finding “that at the time of trial existing technology did not include any effective method for a sender to prevent minors from obtaining access to its communications on the internet without also denying access to adults.”

In 1998, Congress tried again, passing the Child Online Protection Act, but in 2004 a closely divided Supreme Court blocked enforcement. Its decision was based in part on the naïve belief that blocking and filtering technologies were “less restrictive alternatives” to the law. But time has demonstrated that blocking and filtering aren’t “less restrictive”; they’re wholly inadequate.

As French concludes, with more modern age verification technology, those precedents suggest that if the tech is better, than the concerns in those cases no longer apply, and the laws can be constitutional:

Thus, our nation’s challenge is more technical than constitutional. The best way to understand the court’s old precedents regarding online age verification to get access to pornography is not that it said “no” but rather that it said “not yet.” But now is the time, the need is clear, and the technology is ready. Congress should try once again to clean up the internet the way cities cleaned up their red-light districts. The law must do what it can to restrict access to pornography for children online.

There’s just one of (actually) many problems with this. It’s not true. It’s not true that the earlier precedents were that limited, and it’s not true that today’s “technology is ready.”

Thankfully, 1st Amendment lawyer Ari Cohn has a pretty thorough response to French that is mandatory reading if you found French’s argument compelling.

The 1st Amendment, and the key precedents around it, are not nearly as malleable as French believes, Cohn notes.

French’s thesis can be distilled to two basic arguments: first, there is no constitutional right to “convenient pornography, and second, that established precedent declaring government-mandated age verification unconstitutional is “outdated.” And so, he concludes, the problem is “more technical than constitutional.” But those arguments, and his conclusion, couldn’t be farther from the truth.

Reducing the controversy to one about “convenient pornography” grossly minimizes the First Amendment issues at stake. Like it or not, pornography—and adults’ ability to access it—is constitutionally protected. So despite this attempt to otherize it, what we are talking about is speech. And speech does not become any less speech merely because some people find it “icky” or morally questionable.

The key bit, and perhaps the most important part, is that French’s claim of moving “offline doctrines” into the “online world,” seems to involve him misunderstanding “offline doctrines.”

French points to “ID requirements for strip clubs and other adult establishments,” arguing that we already require some loss of anonymity to access adult materials offline. Maybe so. But first, few if any laws explicitly require checking IDs—establishments do so voluntarily to avoid potential liability from providing entrance or materials to minors.

More importantly, there is a world of difference between a quick glance at an ID to check date of birth, and uploading identity documents to the internet that create a record of a user’s access.

Online data about us is collected, stored, shared, sold, and used at a galactic level. If anything, the chilling effect of age verification is significantly worse than it was 20 years ago. The effect of creating that kind of digital trail is several orders of magnitude greater than handing over an ID to a bouncer or store clerk—who likely could not remember your name seconds after handing it back.

Comparison of those two drastically different scenarios is reminiscent of the government’s argument in the door-to-door canvassing case: that canvassers necessarily reveal part of their identity by simply showing up at someone’s doorstep, perhaps someone who already knows them. The Supreme Court forcefully rejected that argument, finding that it did not mitigate the constitutional concerns.

Furthermore, in the few cases French can point to where “offline doctrine” has limited children’s access to adult content, as Cohn notes, those laws don’t chill 1st Amendment rights:

… having to travel a little farther to reach a business does not chill a patron’s First Amendment rights; compelling adults to sacrifice their anonymity before accessing disfavored content plainly does.

As for the ruling in Reno that French suggests is obsolete? Cohn points out that French is really annoyed about the facts, not the legal standards:

The principles laid out in Reno remain sound: the First Amendment protects online speech the same as offline speech, and any content-based restrictions must satisfy strict scrutiny—that is, the law must be narrowly tailored to serve a compelling government interest, and must be the least restrictive means of accomplishing the government’s goal. Far from being outdated, this remains the analytical approach the court uses to assess any content-based speech regulation.

French’s real issue is with the facts and evidence presented in Reno. But Reno has never precluded arguing that new facts and circumstances militate a different outcome; it simply held that on the record before the court, the law was unconstitutional. The question is not whether Reno should be revisited, but rather whether these new laws, under new facts, can satisfy the relatively routine constitutional analysis that the Reno court applied.

As for the idea that modern credit card technology changes the ballgame by making age verification effective, Cohn breaks that down as well:

French argues that because “secure credit card use and age verification are practically ubiquitous,” we have evolved past Reno’s assessment that credit card verification is “effectively unavailable.” In doing so, he misses the true meaning of “effectively unavailable.” Reno, and thecases that followed, found that credit card age verification failed to render the law “narrowly tailored” because it doesn’t actually verify age.

And nothing has changed in that respect. Neither entering a credit card nor uploading a picture of an ID actually verifies that it is that person who has provided the identity information. It’s just as easy to borrow an older sibling’s ID as it is to borrow a parent’s credit card. And while there are new forms of age verification that utilize selfies or video, a quick Google search turns up countless pages on fooling such systems using free, easy-to-use software. Whatever the advances in technology since 2008, they have not yet solved this fatal problem.

Reno and its progeny also held that parental controls and content filtering were less restrictive alternatives than age verification. French argues that we have now learned they are “wholly inadequate.”

But is that so? French doesn’t provide a basis for this claim.

And, in fact, Judge Ezra noted that Texas’ own studies tended to show that content filtering and parental controls would be more effective, and better tailored, than age verification.

Perhaps French believes such measures are inadequate because parents lack the knowledge and ability to implement them. But that does not allow the government to sidestep them as a less restrictive means: “A court should not assume a plausible, less restrictive alternative would be ineffective; and a court should not presume parents, given full information, will fail to act.”

There’s a lot more in Cohn’s analysis, but it saves me from having to do a similar breakdown myself.

The 1st Amendment still applies, and as courts in Texas and Arkansas (and hopefully soon in California) have rightly found, these laws do not get anywhere close to passing the standards required to get around the 1st Amendment.

Filed Under: 1st amendment, adult content, age verification, ari cohn, david french, free speech, pornography, protect the children

Time Magazine Explains Why Section 230 Is So Vital To Protecting Free Speech

from the free-speech-under-attack dept

For years now, we’ve been highlighting just how bad various mainstream media publications have been in discussing Section 230 of the Communications Decency Act. Therefore, it’s a bit of a pleasant surprise to find out that Time Magazine has published an excellent explainer by David French, a lawyer who has been a long time free speech supporter. At the very least, this new article makes up for an earlier Time article that appears (like so many) to confuse Section 230 with the 1st Amendment in terms of what enables the posting of disinformation online.

French’s piece is more than just a defense of Section 230, it explains — as we have in the past — how Section 230 enables free speech online, and why that’s important, even as it may sometimes be abused.

It?s difficult to overstate how important this law is for the free speech of ordinary Americans. For 24 years we?ve taken for granted our ability to post our thoughts and arguments about movies, music, restaurants, religions, and politicians. While different sites have different rules and boundaries, the overall breadth of free speech has been extraordinary.

As it always has through human history, free speech has been used for good and ill. Anti-vaccination activists abuse liberty by spreading medical misinformation online. Social media bullies have named and shamed even private citizens for often trivial offenses. But on balance, free speech is a great gift to American culture. As the courageous abolitionist Frederick Douglass declared in 1860, free speech is the ?dread of tyrants.? It is the ?great moral renovator of society and government.? The freedom to speak has been at the foundation of America?s most potent social movements.

French then points out that many of the people (on both sides of the political aisle) now attack Section 230 are famous and have the ability to speak out and have the media repeat what they are saying. That is, those are people who have their own channels to communicate, and thus have much less of a reason to care about the fact that 230 opens up such channels of communication to everyone else, allowing them to speak their minds and get their thoughts out there:

But note well the speakers here. Hawley, Biden, and Cohen have immense public platforms. Hawley even enjoys an extraordinary legal immunity that other citizens can?t even dream of ? thanks to the Constitution?s Speech and Debate Clause, he can?t be held legally responsible for anything he says in the performance of his official legislative duties. There are no more privileged speakers in America than members of Congress.

Celebrities have their own websites. They?re sought after for speeches, interviews, and op-eds. Politicians have campaigns and ad budgets, and they also have abundant opportunities to speak online and in the real world. If they succeeded in making social media companies liable for users? speech, they would pay no meaningful price. You would, however. Your ability to say what you believe, to directly participate in the debates and arguments that matter most to you would change, dramatically.

French is making a very important point here. The effort to kill of Section 230 is, fundamentally, an effort by the rich, powerful, and connected, to shut off a key channel of speech for the marginalized, ignored, and shunned. It is an explanation for why Section 230 helps those who need it most, and how efforts to cut it off are, at their core, an effort by those in power to silence those without power.

In my opening paragraph, I argued that reforming or repealing Section 230 would represent ?one of most significant acts of censorship in modern American history.? An entire contemporary culture of speech and debate exists thanks to Section 230. A generation of young people has grown up knowing nothing but the freedom to speak online.

Yes, this freedom is often abused, but ? truly ? whose fault is that? Is it Twitter?s fault if I lie about the news? It is my responsibility to exercise my rights responsibly. And the failure of others to respond well to freedom should not result in the loss of my right to speak. Politicians will sacrifice nothing if you?re silenced. In fact, when they speak of Section 230 reform, understand that they are uttering the ancient argument of powerful censors throughout American history.

This is not a new argument. We have tried to argue over the years that enabling government-backed censorship powers will inevitably create scenarios in which the powerful and connected censor those without power. It will harm the most marginalized, but be done in the name of “protecting” them. It would be a huge mistake, and, as French rightly points out, an affront to free speech online.

Filed Under: 1st amendment, david french, free speech, section 230