Posts about first amendment

The right to remember, damnit

A reporter asked me for reaction to news that Google has put up a form to meet a European court’s insane and dangerous ruling and allow people to demand that links to content they don’t like about themselves be taken down. Here’s what I said:

This is a most troubling event for speech, the web, and Europe.

The court has trampled the free-speech rights not only of Google but of the sites — and speakers — to which it links.

The court has undertaken to control knowledge — to erase what is already known — which in concept is offensive to an open and modern society and in history is a device used by tyrannies; one would have hoped that European jurists of all people would have recognized the danger of that precedent.

The court has undermined the very structure of Sir Tim Berners-Lee’s invention, the link — the underpinning of the web itself — by making now Google (and next perhaps any of us) liable just for linking to information. Will newspapers be forced to erase what they link to or quote? Will libraries be forced to take metaphoric cards out of their catalogs?

The court has, ironically, made Google only more powerful, making it the adjudicator of what information should and should not be found. The court has also given Google ludicrous parameters — e.g., having to decide what is relevant to what; relevant to whom; relevant in what context?

We don’t know how this order will be implemented by the various search engines. One question is what right of notice and appeal a delinked site will have.

If this process is public, as it should be, then doesn’t that have the potential to bring even more attention to the information in dispute? Another question is whether content will be made invisible in Europe but will still be visible — as I hope it will be — in the rest of the world, where the European court has no authority. Will this then allow others to compare search results and make the banned information only more visible? In the end, has the court assured a Streisand effect — or, as the comedian John Oliver said on his HBO show, the one thing that is known about the Spaniard who brought this case is the thing that he does not want known.

Further, what of search engines and sites that have no European offices and thus the court has no authority over them? If they refuse to delink on demand will the court ban these sites for European view?

Finally, I am concerned about the additive effect of this ruling on Europe’s reputation as technophobic or anti-American. Add to this especially various actions in Germany — government officials demanding a “Verpixelungsrecht” (a right to be pixelated) in Google Street View despite the fact that these are images taken of public views in public places; German publishers ganging up on Google to strongarm politicians into passing a law limiting the quoting of snippets of content and now threatening to break up Google — in addition to similarly head-scratching moves in France, Italy, and elsewhere. Is Europe a place where any technology company or investor will choose to work?

You ask about Eric Schmidt and David Drummond cochairing the advisory committee. That is a clear indication of how profound and dangerous this situation is in Google’s view. It so happens I was in Mountain View two weeks ago speaking to the all-hands meeting of Google’s privacy teams and I can tell you they were shocked at the ruling. I also said much of what I’ve said to you there. I am appalled by this ruling. [As a matter of disclosure, Google paid my travel expenses but I have no business relationship with Google.]

Protecting journalism v journalists

The Knight Foundation’s Eric Newton draws attention to the knottier issues around a proposed federal shield law for journalists and urges critics to be included in the debate about whether it is better to have a constitutional or merely a legislative protection.

I believe a shield law that protects job descriptions is fatally flawed. At a Knight event in Washington last week, investigative journalist Scott Armstrong argued strongly that the government will slice out exceptions to protecting national-security reporters. “More cases are emerging because it’s never been easier to leak or investigate leaks,” Newton writes. “Reacting to a new generation of digital whistleblowers, like Chelsea Manning, Armstrong said this administration began to treat all leaks ‘as if they were espionage cases.’ There have been seven leak cases under the Obama administration, and only four in all of history before; Savage called challenging informants the ‘new norm.’”

I worry that by requiring the journalist to work for a news organization or freelance for them or be a journalism student, many will be left out. But arguing to add more categories of people to the definition isn’t the answer.

The answer is to protect not the journalist but the act of journalism: that is, revealing information that is in the public interest.

Oh, yes, I know that would then include Wikileaks, Chelsea Manning, Edward Snowden, Thomas Drake, and Daniel Ellsberg — none of whom would qualify under the proposed law but every one of whom has revealed information of vital public interest, fueling the debate that democracy should welcome.

Until we are ready to stand behind that broad principle of information in the public interest as our definition of journalism, then I come to see that I stand with the shield-law critics Newton cites. For we do have a shield. It is the First Amendment. Asking Congress to modify and limit it is short-sighted and too much an act of self-interest by journalistic organizations eager to be protected themselves.

Let’s remember that ultimately, it’s not the journalists we are seeking to protect but the sources of that information. Now that those sources can share directly with the public, with or without journalists as mediators, then we must protect them as journalistic actors.