Archive | First Amendment

Obama’s New Plan for the Future of Open Government

By on February 14, 2014 in First Amendment, Internet, Journalism, Transparency

foxfolderlargeOn this week’s episode of WNYC’s “RadioLab” podcast, the hosts interviewed Jeff Larson, data editor at ProPublica. He described his experience in June 2013 filing a Freedom of Information Act (FOIA) request with the United States National Security Agency (NSA) to find out if the agency had collected any metadata about his cell phone usage. He received a letter stating,

We cannot acknowledge the existence or non-existence of such metadata or call detail records pertaining to the telephone numbers you provided. . . .  Were we to provide positive or negative responses to requests such as yours, our adversaries’ compilation of the information provided would reasonably be expected to cause exceptionally grave damage to the national security.

The rest of the podcast episode focused on the history of the government’s common “neither confirm nor deny” response to FOIA requests, and provided some background on the ongoing battle between open government and national security concerns. The podcast hosts also interviewed Jameel Jaffer, director of the American Civil Liberties Union (ACLU) National Security Project, who outlined problems with bringing lawsuits against the government when it fails to respond to FOIA requests. One big concern is how long it takes to litigate a case. “[T]he government may ultimately lose [the lawsuit],” Jaffer said, “but it will lose at a time when the public debate has moved on to something else.” Under the Obama administration there has been a significant increase in the number of FOIA lawsuits filed against the government. Yet, it was President Obama who began his presidency with promises of transparency.

Early in his first term, President Obama promised an “unprecedented level of openness” and said he would “establish a system of transparency, public participation, and collaboration in Government.” Indeed, Obama and his tech-centric staff took steps to that end, including tapping transparency and technology advocate Beth Simone Noveck to head the administration’s newly established Open Government Initiative. According to the initiative’s website, its initial goals, as laid out in the Open Government Directive, were to create a presumption of openness in government data, to improve the quality of government information, to create and institutionalize a culture of open government, and to create an policy framework for open government. Four years later, in a 2012 TED talk, Noveck described her first day at the White House:

[B]omb-blast curtains covered my windows; we were running Windows 2000; social media were blocked at the firewall; we didn’t have a blog, let alone a dozen Twitter accounts like we have today.

Comparing Noveck’s first-day experience to the administration’s current online presence, it is clear that since Obama’s election, the federal government has increased its use of technology to disseminate messages and to allow the public to access data from its various agencies. However, the degree to which the administration has truly increased transparency is much less clear.

In the four years since the Open Government Initiative began, the federal government has created a variety of tools to increase the public’s access to government information. For example, the launch of data.gov, the self-proclaimed “home of the U.S. government’s open data,” in mid-2009, required each federal agency to begin by posting “at least three high-level data-sets” to data.gov and to establish a webpage to “serve as a gateway for agency activities.” The administration also launched We the People, a web page on which users can launch petitions and, if they gather 100,000 signatures in 30 days, receive a response from the administration.  The number of required signatures increased from 5,000 in September 2011; to 25,000 in October 2011; and again to 100,000 in January 2013. “We the People” has been utilized to create petitions on a wide range of topics, including one to make unlocking cell phones legal and another to revoke pop-star Justin Bieber’s green card and deport him to his home country of Canada. The initiative also helped create the “peer-to-patent” program, a project that leveraged public expertise about technology to streamline the application process at the U.S. Patent and Trademark Office.

Many critics argue, however, that the administration’s open government efforts, while having some potential civic value, only marginally increase the government’s level of public accountability. Harlan Yu, of Princeton University’s Center for Information and Technology Policy, and David Robinson, of Yale University’s Information Society Project, argue that the term “open government” originally was associated with politically sensitive disclosures obtained via FOIA, but now the term has merged with “open technology” so it is associated with the sharing of data over the Internet. This definitional blurring, they argue, has made “open government” less about public accountability and more about “politically neutral public sector disclosures.” At closer examination, almost all of the commitments in the initial Open Government Directive dealt with making non-sensitive data publicly available. At the time of the directive’s release, Jameel Jaffer, director of the ACLU National Security Project offered this criticism:

While the Obama administration should be commended for the issuance of this directive, we remain concerned that executive agencies are invoking national security concerns as a pretext to suppress records that relate to government misconduct. . . .While we appreciate the steps that the Obama administration has taken to increase government transparency, the administration’s stated commitment to transparency has not yet translated into real change on information relating to national security policy.

Obama is by no means the first president to struggle with secrecy in the executive branch. Balancing secrecy and transparency has been a long-time struggle for U.S. presidents. In 1967, when the initial iteration of the Freedom of Information Act was reluctantly signed by then-President Lyndon Johnson, he noted in his signing statement:

A democracy works best when the people have all the information that the security of the nation permits. No one should be able to pull curtains of secrecy around decisions which can be revealed without injury to the public interest. At the same time, the welfare of the Nation or the rights of individuals may require that some documents not be made available.

In 1971, the U.S. Supreme Court found against the Nixon administration in the landmark case, New York Times v. United States and allowed the publication of The Pentagon Papers, a 47-volume U.S. government report about the Vietnam War. In that case, President Nixon’s solicitor general, Erwin Griswold, argued that despite the Constitution’s protection of freedom of speech and of the press, there was a need to “protect the nation against publication of information whose disclosure would endanger the national security. . . .” The analyst who leaked The Pentagon Papers, Daniel Ellsberg, defended his actions, saying, “I think we cannot let the officials of the executive branch determine for us what it is that the public needs to know.” In 1974, Congress had to override President Gerald Ford’s veto to pass the Privacy Act Amendment of 1974, which strengthened FOIA in the aftermath of the Watergate and other scandals involving the Nixon administration.

In addition, there have been numerous executive orders over the last several decades changing the classification procedures for documents related to national security. In fact, starting with President Carter, each president has issued his own executive order clarifying procedures for handling classified information. In their signing statements, these presidents all claimed that their orders protected U.S. security, limited over-classification of documents, and simplified procedures for declassification of secret documents. Critics have consistently argued otherwise. In 2012, Margin Faga, the former director of the National Reconnaissance Office, lamented the current system’s complexities and tendency toward over-classification. In a blog post for the Public Interest Declassification Board, a nine-member advisory board mandated by the Public Interest Declassification Act of 2000, Faga wrote:

The system keeps too many secrets, and keeps them too long. Its practices are overly complex, and serve to obstruct desirable information sharing inside of government and with the public. There are many explanations for over-classification: much classification occurs essentially automatically; criteria and agency guidance have not kept pace with the information explosion; and despite numerous Presidential orders to refrain from unwarranted classification, a culture persists that defaults to the avoidance of risk rather than its proper management.

In December 2013, the Obama administration released its second National Action Plan for the Open Government Initiative. As did the first initiative, the new plan proposes several ways to increase public participation in government, including an expansion of the “We the People” website and the establishment of best practices for federal agencies seeking to increase public participation. However, the second National Action Plan also includes new commitments to address transparency and accountability concerns in areas related to national security. These include, but are not limited to: increasing transparency about intelligence-gathering activities conducted under the Foreign Intelligence Surveillance Act (FISA), changing the system under which documents are classified for national security purposes, and consolidating federal systems to streamline and standardize FOIA requests. In each of those areas, the Obama administration has formed, or is in the process of forming, advisory groups to make policy recommendations. Below are brief summaries of these issues as laid out in the National Action Plan and the progress that has been made on the issues since the plan’s release in December of 2013:

Increasing Transparency of Activities Conducted Under FISA

After the publication in June 2013 of information leaked by former government contractor Edward Snowden about the NSA’s domestic spying program, the Obama administration instructed the director of national intelligence to declassify and publish online documents about the nature of U.S. intelligence collection programs. Going forward, the National Action Plan calls for continued review and declassification of documents pertaining to intelligence programs as well as numerical data about the use of these programs. Since the plan was published in December 2013, Obama has proposed additional changes to the FISA Court, the judicial body where agencies like the NSA request surveillance warrants. On January 17, as part of his speech on NSA reform, Obama called on Congress to install “public advocates” to represent privacy and other civil liberty concerns at the secret FISA court. Many advocates of NSA reform, including the Electronic Frontier Foundation and the Truman National Security Project, have lauded the proposed public advocates as a step in the right direction on civil liberties, though the proposal also has been criticized by the former head of the FISA Court.

Changing the System Under Which Documents are Classified for National Security Purposes

The second National Action Plan proposes creation of a simplified system of classifying materials for national security purposes to reduce over-classification of materials and simplify the process for declassifying materials that are no longer sensitive. The plan’s recommendations range from implementing technologies to simplify and automate the declassification process to a complete overhaul of the classification process. The plan also calls for creation of a Security Classification Reform Committee to review the recommendations contained in a report, Transforming the Security Classification System, released in November 2012 by the Public Interest Declassification Board. The report recommends reducing the traditional three classification levels (Top Secret, Secret, and Confidential) to two levels and implementing procedures to help align the level of classification with the “level of harm anticipated in the event of an unauthorized release.” Classifiers would base their classification decisions on “clearly identifiable risks” linked to specific classification levels, rather than on vague estimations of “presumed damage.” Additionally, the report recommends providing “safe harbor” protection for classifiers who “adhere to rigorous risk management processes and determine in good faith to classify information at a lower level or not at all.” Some critics of this plan argue that it simply restates the decades-old ideal of protecting U.S. security, reducing over-classification, and simplifying declassification with no clear plan as to how those goals might be achieved. Critics also complain that a two-level tier of classification simply moves the lowest level of classified material to a higher level.

Consolidating Federal Systems to Streamline and Standardize FOIA Requests

The Obama administration claims that it has made FOIA processes easier by speeding up processing time, disclosing information proactively to avoid the need for individual requests, and by reducing FOIA backlogs. The National Action Plan outlines the goal of directing FOIA requests into a single online portal to reduce the confusion information-seekers experience when trying to identify the proper department for their particular need. The plan also outlines increased efficiencies and a continued reduction in FOIA backlogs by increasing staff training and sharing best practices across departments. Last, it commits to establish a FOIA Modernization Advisory Committee to oversee these improvements and foster dialogue between the government and the requester community. As of January, 2014, the National Archives and Records Administration, in cooperation with the General Services Administration, has begun recruiting members for a 20-person committee, with equal representation from both the government and the FOIA requester community.

Despite the commitments in the National Action Plan, many remain skeptical of the Obama administration’s commitment to increased transparency. The administration’s aggressive use of the Espionage Act to target whistleblowers and leakers does not inspire confidence in the administration’s ability to “to create and institutionalize a culture of open government” as promised in Obama’s first Open Government Directive. It seems more likely that political pressures created by the Snowden leaks and the public outrage over domestic spying programs motivates Obama’s recent commitments to transparency. This seems particularly likely in the case of FISA in that Obama, along with Congress, successfully renewed the Act, including the Bush-era amendments, in December of 2012. The several new review groups and committees called for in the National Action Plan to help craft and implement policy are also cause for concern. In his recent speech on NSA reforms, Obama refused some of the more sweeping recommendations made by the recent NSA review panel. It’s altogether possible that he might do the same with recommendations for FOIA and classification system reforms.

Even giving the administration the benefit of the doubt, it is unclear that the proposed changes would be effective. As the recently Radiolab episode pointed out, the most successful FOIA requesters have to find specific mentions by public officials of individual documents or files in order to be precise in their requests. And there’s the rub: FOIA was enacted as a means to increase transparency, but its effectiveness is reduced when requesters do not know exactly what they are seeking. Because there’s no index, this need for specificity combined with rampant over-classification is a major problem with the current system. The classification system for national security documents is likely the biggest roadblock to increased transparency—web portals and technological automation can provide only partial reform for issues related to access and declassification. True reform requires a cultural change in the intelligence community in favor of increased openness. Until that exists, it’s hard to imagine a government employee marking even a low-risk document as “unclassified.”

Given the Obama administration’s inconsistent record on transparency and the long history of secrecy in areas related to national security, skepticism about the second National Action Plan’s potential to enact meaningful change is understandable. That being said, the plan is a welcome admission by the executive branch of the need to reform secrecy laws. Moreover, it identifies and offers incremental solutions for specific problems in the classification and declassification processes that contribute to the tendency toward secrecy. While some of the proposed solutions may need to be reconsidered or retooled, the administration has opened a new door to dialogue and cooperation with open government advocates. Whether that door was initially opened for public relations purposes is unimportant. It would be a mistake to let pessimism and skepticism stand in the way of reform.

0

Congratulations to UNC Students: Publications and Conference Papers

By on February 13, 2014 in First Amendment, Journalism, Privacy

What’s more fun that sharing good news about our great media law students?  Absolutely nothing!  So here it goes. . . .

UNC School of Journalism and Mass Communication Ph.D. student Karen McIntrye has had an article accepted for publication in the Newspaper Research Journal.  The title of her paper is “Drone Journalism: Exploring the Potential Privacy Invasions of Using Unmanned Aircraft to Gather News.”

Also, three other students and a University of Oklahoma student who will join the J-School faculty next fall had papers accepted for presentation in the Law and Policy Division at the Association for Education in Journalism and Mass Communication (AEJMC) Southeast Colloquium at the University of Florida in March.  The papers went through a process of blind review, with students and faculty competing in the same category.  UNC student papers will represent 25 percent of the papers to be presented at this conference.

These are the students and the titles of their papers:

Kevin Delaney:  “Rube Goldberg-Like Contrivances and Broadcasting: The Litigation Challenging Aereo and FilmOn.”  Kevin is in our dual-degree program, earning an M.A. in mass communication and a J.D.

Natasha Duarte: “I Know Whom You Called Last Summer: Government Collection of Telephony Metadata and the Freedom of Association.”  Natasha is in our dual-degree program.

Liz Woolery:  “The Element that Ate the Tort: Newsworthiness and the Public Disclosure of Private Facts.”  Liz is a Ph.D. student in the J-School.

Also, Adam Saffer, a Ph.D. student at the University of Oklahoma and a soon-to-be public relations professor in the J-School, had this paper accepted:  “Practitioners as Publishers: Examining Public Relations Practitioners’ Claims for Legal Protections Traditionally Associated with the Institutional Press” (with co-author Jared Schroeder from Augustana College).

Congratulations Tar Heel scholars!

0

Drones, Drones, Everywhere a Drone: Is North Carolina Ready for Unmanned Aircraft Systems?

By on February 10, 2014 in First Amendment, Journalism

Drones in North Carolina

It seems everyone has been talking about drones lately. Journalists, emergency management officials, police officers, privacy advocates, and even farmers have all shared their two cents about these “flying robots.” Now the North Carolina General Assembly has joined the discussion. Late last month, a legislative committee convened to discuss the future of unmanned aircraft systems/vehicles (UAS/UAV) in the state. “Unmanned aircraft systems” is the committee’s preferred term, rather than “drones.” The House committee, co-chaired by Representatives John Torbett (R) and Michael Setzer (R), was formed to study safety and privacy issues raised by unmanned aircraft systems. The committee also will study possible commercial and governmental uses of UAS and the potential economic benefits of UAS in the state.

At the Jan. 21 meeting, the committee heard from several speakers involved in the state’s study of UAS, including the state’s chief information officer, the director of NexGen Air Transportation at North Carolina State University, and representatives from the legislature’s Research Division. The committee did not reach any conclusions about the future of UAS in North Carolina and expects to meet up to three more times before presenting final recommendations during the 2014 legislative session. Those recommendations are due by April 25. What the committee is tasked with deciding before making those recommendations is relatively straightforward:

  • Is there a future for UAS in North Carolina?
  • Who will make use of UAS? Businesses? Government agencies? Civilians?
  • What regulations for UAS must be considered?
  • How can the state address privacy concerns raised by the use of UAS?

North Carolina is not alone in thinking about these questions. According to the National Conference of State Legislatures, 43 states introduced 130 bills and resolutions on UAS in 2013 alone. By the close of the year, 13 states had enacted laws, and 11 had adopted resolutions. In July, North Carolina joined those ranks when it enacted the Current Operations and Capital Improvements Appropriations Act of 2013.

State Regulation in North Carolina
Buried deep within the appropriations law is Section 7.16, the state’s first major effort to regulate Unmanned Aircraft Systems. Specifically, this section addresses how government agencies may go about procuring an unmanned aircraft. Section 7.16 effectively puts a moratorium on state or local government acquisition or operation of UAS until July 1, 2015, unless the state’s Chief Information Officer (CIO) approves such a request. The job of approving or denying requests for drones might seem out of the purview of a CIO. The CIO is housed within the state’s Office of Information and Technology Services, an office whose function is to deliver “the best in IT service and support.” In turn, the state CIO is granted “statewide authority over IT project approval and oversight, IT procurement, security, and information technology planning and budgeting.” At some point, someone felt that drone approval fit within that job description, and so approval for drones must now go through State CIO Chris Estes.

The state law further outlines the approval process a state agency must use to obtain and operate an unmanned aircraft vehicle. First, the agency must seek approval from Estes. Second, if Estes approves the request, the authorization will be reported to the Joint Legislative Oversight Committee on Information Technology and the Fiscal Research Division. At this point, planning for the drone can move forward, with Estes working alongside the director of the Aviation Division and the CIO for the Department of Transportation. Finally, State CIO Estes must provide “a proposal for implementation of the [UAS] program” to the legislative oversight committee by March 1, 2014.

Federal Aviation Administration Regulation
The N.C. House Committee on Unmanned Aircraft Systems has been tasked with finding out as much as it can about the potential for unmanned aircraft systems in North Carolina. But the state isn’t the only player here. As the committee heard at its January meeting, the Federal Aviation Administration will have a huge role in determining whether there is a future for UAS in the state and elsewhere, and what that future looks like. With the passage of the FAA Air Transportation Modernization and Safety Improvement Act in 2012, the FAA has a mandate to roadmap the future of UAS in the United States. Specifically, the FAA is charged with providing “for the safe integration of civil unmanned aircraft systems into the national airspace system” by September 2015. Further, the FAA needs to identify operational and certification requirements for operation of UAS by Dec. 31 of that year.

The FAA Modernization and Reform Act also mandated that the agency identify six “test ranges” at which its program for integration of UAS into the national airspace could begin. Twenty-five organizations across the country submitted proposals to be selected as one of the six. On Dec. 31, 2013, the FAA identified the operators of those six test sites as the University of Alaska, the State of Nevada, Griffiss International Airport (in Rome, N.Y.), the North Dakota Department of Commerce, Texas A&M University – Corpus Christi, and Virginia Polytechnic Institute and State University (Virginia Tech). Testing at those sites can continue until Feb. 13, 2017.

FAA-selected-uas-test-site-operators-large

Until testing at these sites is completed, many UAS flights are effectively grounded due to FAA certification requirements. The FAA approval process requires UAS operators to obtain two certifications, an Airworthiness Certificate and a Certificate of Waiver or Authorization (COA). The Airworthiness Certificate is used “to ensure that an aircraft design complies with the appropriate safety standards in the applicable airworthiness regulations.” As of now, standard airworthiness certificates are not being issued for unmanned aircraft systems; instead, the FAA is only issuing “experimental” certificates for UAS. The second certification, the COA, is issued after the FAA completes a “comprehensive operational and technical review.” Additionally, a COA can impose provisions or limitations on the use of the aircraft. Unfortunately for UAS operators, the approval process for both certifications can be time-consuming, taking up to a year, according to the FAA. Finally, it appears that the FAA has put the brakes on commercial UAS certifications; right now the agency is only permitting a limited number of experimental certifications. According to a FAA spokesperson, the FAA is in the process of “evaluating many potential uses of UAS,” however, “commercial operation of such aircraft is not yet allowed.”

Government, Civilian, and Commercial UAS
The FAA has been marching forward with its plan for unmanned aircraft systems regulation and experimentation. But while the FAA crafts regulations, states are still wondering what the future of UAS looks like for them. At the Jan. 21 committee meeting, members of the General Assembly heard from Kyle Snyder, director of the NextGen Air Transportation Center, housed at the Institute of Transportation Research and Education at North Carolina State University. Snyder offered the committee an overview of UAS, including what they are, what they are used for, and what the economic impact of UAS could be. On that last topic, Snyder cited a report from the Association for Unmanned Vehicle Systems International (AUVSI) that suggested UAS-based industry could create roughly 7,500 jobs in North Carolina by 2017. Already, though, Snyder’s work has seen some of the potential for UAS in the state, mainly in agriculture, where UAS could help farmers capture images to learn about their crops’ health and potential yield.

In addition to famers, other industries and professionals have expressed interest in UAS. Among them is the emergency management field, where officials could use UAS to collect images that show the scope of devastation after an earthquake or hurricane, for example. Law enforcement agencies also are interested in drones for a variety of purposes, including monitoring U.S. borders, tracking criminals or missing persons, and generating heat maps, which can be used to identify marijuana grow houses. And of course, some businesses are planning for more creative uses of UAS:

Of particular interest to those of us in the media law and policy world is the potential for “drone journalism.” Several organizations and universities, including the University of Nebraska-Lincoln and the University of Missouri, have started drone journalism research labs to explore the possible uses for UAS in news reporting. Around the world, UAS have been used to report on events such as Nebraska’s 2012 drought, a building demolition in Florida (during which the drone and news crew were attacked by a swarm of bees; the swarm became increasingly agitated as the drone’s rotors “whacked” the bees), political upheaval and police brutality in Turkey (the citizen journalist’s drone was ultimately shot down by police in Gezi Park), and a fire in New South Wales, Australia. Also, the British Broadcasting Corporation recently acquired an unmanned aircraft, named the “hexacopter.” According to BBC correspondent Richard Westcott, the hexacopter records images better than other image-capturing tools, including a helicopter or a steadicam. Given the already widespread use of UAS in news reporting, it certainly appears drones are going to be part of the future of journalism. But journalism, as with other industries interested in UAS, must wait until the FAA has completed experimental flights at the six test ranges, identified certification and operation requirements, and finalized a roadmap for the integration of commercial and civilian UAS into the national airspace.

Privacy Concerns Pave the Way
That roadmap may prove to be bumpy. As the FAA and other organizations involved in UAS have learned, civilian and commercial drone use has prompted concern about expectations of privacy. Legislators must consider whether the measures that currently are in place to protect an individual’s right to privacy are sufficient. Lawmakers also will be faced with the question of how they can plan for the future of UAS and ensure that the surveillance capabilities of these high-tech “flying robots” won’t be abused.

As the N.C. House Committee heard last month, any discussion or planning for civilian, commercial, or governmental UAS use must address these privacy concerns. To some extent, existing state law already speaks to some of those concerns. Susan Sitze, with the General Assembly’s Research Division, provided an overview of several existing state laws relevant to UAS use, including regulations on law enforcement surveillance and laws on general electronic surveillance. Already, North Carolina has criminal penalties for “secret peeping” and the “interception of oral transmissions.”

Law enforcement use of drones would raise a separate set of legal issues, including concerns about Fourth Amendment violations. Currently, many local, state, and federal agencies already have the tools for distance observation and surveillance, such as helicopters, traffic cameras, CCTV cameras, and satellites. But UAS can be cheaper, more flexible, more efficient, produce higher quality images, and respond more quickly than those surveillance tools. Some existing state laws, such as Article 16 of the N.C. General Statutes, addresses broader issues related to law enforcement surveillance. For example, Section 15A-290 details the circumstances under which permission may be granted for electronic surveillance; the circumstances currently are limited to drug trafficking and other violations of drug laws.

Finally, there is the issue of civil liability. North Carolina does recognize several privacy torts, including invasion of privacy by intrusion into one’s seclusion or solitude. The “intrusion tort” was recognized for the first time in 1996 in Miller v. Brooks, 123 N.C. App. 20 (1996). The Miller court relied on the Restatement (second) of Torts’ § 652B definition of intrusion: “One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person.” This three-part definition, involving intrusion into solitude or seclusion that is highly offensive to a reasonable person, continues to be the core of the state’s intrusion tort.

How state laws on civil liability, law enforcement use of surveillance, and general electronic surveillance will fare in the age of UAS is unclear. Perhaps these protections will be sufficient. But maybe they won’t be, and if that’s the case, individual states may become the leaders in protecting privacy. Already the California Assembly has passed a bill restricting law enforcement use of UAS and data collected by UAS. The measure will now move to the California Senate for a vote. It is up to this N.C. House Committee (and more broadly, the state General Assembly) to decide how, if at all, North Carolina will wade into this great UAS experiment.

The Future for UAS in North Carolina
As the House Committee on Unmanned Aircraft Systems debates the future of unmanned aircraft systems in the state, there is one thing they will be sure to keep in mind: How greatly North Carolina cherishes its connection to the birth of the aviation industry. It was here on the beaches of Kitty Hawk in December 1903 that Wilbur and Orville Wright took their “flying machine” to the skies for 59 seconds and 852 feet, securing their legacies in aviation history. After completing the flight, the brothers walked four miles to the nearest weather station to telegraph their father, telling him to share the good news with the press. The two brothers had just made “the first free, controlled, and sustained flights in a power-driving, heavier-than-air machine” — and the world needed to know.

Wright_Bros_Telegram

As the first meeting of the House Committee on Unmanned Aircraft Systems concluded, committee co-chair Rep. John Torbett offered a few parting words, including this observation: “How appropriate that we look at the next gen of aviation in the state where aviation, manned flight was invented.” How appropriate indeed.

The House Committee on Unmanned Aircraft Systems will hold its second meeting on Monday, February 17 at 1 p.m. in Room 544 of the Legislative Office Building.

6

A UNC Student’s Summer Experience at the Chilling Effects Clearinghouse, a Project of the Berkman Center for Internet and Society

By on January 14, 2014 in Copyright, First Amendment, Internet

Berkman Center LogoLet me start by saying that I really like information. Numbers, lists, facts, data, trivia. I like them all. I’m an information junkie. I also happen to love the First Amendment. Given this, it’s not surprising that I was so excited to spend this past summer interning with the Chilling Effects Clearinghouse at the Berkman Center for Internet & Society. Chilling Effects collects threats to free expression online, mostly in the form of DMCA take-down notices and similar intellectual property infringement claims, although Chilling Effects receives notices of other threats to free speech as well. All of that information is compiled into a searchable database. Being able to work with Chilling Effects, to explore this database, and to see “under the hood” was a great way to combine my interest in data with my passion for the First Amendment.

The summer was jumpstarted with a joint project involving myself and the two other Chilling Effects interns. Our task was to track down questionable trademark infringement claims in the database. We sorted through hundreds of these claims, looking to see if the people who filed them had concerns beyond trademark infringement — for example, someone whose real issue might be closer to a defamation claim than a trademark claim, but the latter might more quickly and effectively take down the content in question, since defamation claims can be costly to pursue and difficult to win. In other words, we scoured the database looking at potentially fraudulent trademark infringement claims that were being used to stifle free expression online. Once we wrapped up our search we worked with Jeff Hermes at the Digital Media Law Project to turn our findings into content for a presentation he was giving. One of the best parts of summer at the Berkman Center was a project like this one because I got to work with the other interns, all of whom were passionate, curious, and eager to spend the summer researching and working on a variety of Berkman projects.

On top of working with these great people, interns attended weekly presentations by leaders in the technology and policy fields. One week we got to hear from NYU privacy scholar Helen Nissenbaum, who spoke about transparency and privacy issues in accessing online court records. Earlier in the summer many of us attended a book launch for ReWire: Digital Cosmopolitans in the Age of Connection by Ethan Zuckerman of the MIT Center for Civic Media. But perhaps the most fun “intern hour” was an interactive demonstration of Google Glass. We might have looked ridiculous, but we loved being among the first to check out this new wearable computing technology.

The summer flew by. When news broke about the NSA’s PRISM program, I started reading everything I could about the issue and turned my research into a blog post featuring a timeline of Edward Snowden’s leaks and related news about the program. The best part about the blogging for Chilling Effects was that I got to use the Chilling Effects database to add color, facts, and figures to the stories that were already out there. For example, when Twitter released it’s annual Transparency Report in July, I combined their reported data with information stored in the Chilling Effects database. By layering the Chilling Effects’ data on top of Twitter’s, it was easy to start to see the bigger picture for how Twitter handles attempts by countries to censor tweets or account holders.

My summer internship at the Berkman Center gave me the opportunity to work with an area of the law that I am passionate about and introduced me to dozens of new friends and peers who are equally excited about the future of technology, law, and policy. It was by far the most exciting and memorable summer I’ve had and it was an honor to work with some of the world’s leading tech and policy thinkers. Summer 2014 Berkman Center internship applications just opened up and are being accepted until February 16.  If you’re interested applying you can find more information on the Center’s Internship page here.

1

Free Speech Assumptions and the Case of Netflix

By on December 13, 2013 in First Amendment, Internet, Journalism
From left to right: Haben Girma, Harvard Law graduate; Elizabeth Ekstrand, daughter of the author; Victoria Ekstrand, UNC asst. professor; and Katie Savage, president of Advocates for Carolina.

From left to right: Haben Girma, Harvard Law graduate; Elizabeth Ekstrand, daughter of the author; Victoria Ekstrand, UNC asst. professor; and Katie Savage, president of Advocates for Carolina.

There are two (among many) huge assumptions we make when we speak of a right to free speech or free expression.

The first assumption is that such speech can actually be formed.

The second is that such speech will be heard.

For the disabled, neither assumption is a given.  The disabled who can speak are often not heard. Their voices are either lost in a crowded marketplace focused on elite influencers or their speech is lacking or misunderstood because of the nature of their disability.

How then do we conceptualize a right of free speech for the disabled? Can we think about the Americans with Disabilities Act (ADA) in connection with a right of free expression? Do we have any case law that might lead us to consider such a connection? (The short answer to this last question, I think, is “yes.” More on that below.)

Haben Girma, the first deaf/blind student to graduate from Harvard Law School, had me reflecting on these questions during her visit last month to UNC. Haben, who was invited by Advocates for Carolina, a student group formed to reflect on life for the disabled on the UNC campus, spoke about her disability and her story to WUNC and to more than 100 students gathered in the Student Union. She now spends her days as a Skadden Fellow at Disability Rights Advocates in San Francisco, where she works to increase the accessibility of digital instructional materials at colleges and universities.

Like others who have struggled to make a life for themselves amidst an able-bodied culture, Haben refused to allow society to shut her out. She has spent her young life problem-solving around a profound inability to engage in the marketplace of ideas as seamlessly as the rest of us do. While certainly no law has directly infringed Haben’s right to free speech, it is very clear that her speech experience has been profoundly different than the experiences of most U.S. citizens.

That raises the question of government responsibility: What is the state’s role, if any, in assuring access to the marketplace of ideas for those whose access is impaired by a physical and/or mental limitation? And how can digital and online media technologies contribute to that access?

It’s a question I’m interested in thinking more about after Haben’s visit and in the wake of a settlement last year between Netflix and the National Association of the Deaf. The Netflix case revolved around the movie service’s “Watch Instantly” on-demand service, which failed to provide closed captioning on all content. The case ended with a consent decree that mandated Netflix provide captions on all streamed programming by 2014.

Federal District Court Judge Michael Ponsor rejected Netflix’s argument that the American with Disabilities Act (ADA) did not require Internet Service Providers and other digital media providers to make accommodations:

“In a society in which business is increasingly conducted online, excluding businesses that sell services through the Internet from the ADA would run afoul of the purposes of the ADA and would severely frustrate Congress’s intent that individuals with disabilities fully enjoy the goods, services, privileges and advantages, available indiscriminately to other members of the general public.”

In other words, the Internet’s marketplace of ideas must and should be accessible to the disabled. This expanded view of the ADA bears watching for its First Amendment implications going forward. In the meantime, I’ll be sending the link to this post to Haben, hoping that she will post a response below.

 

 

 

1