 The moderator and organizer of today's rich forum, a richly interesting forum, is Lori Lejeune, who is the program manager for the Center for Future Civic Media. And it's my pleasure to introduce her now. Hi, folks. Welcome, everybody. And thanks for coming to our session on civic media and the law today. Here at the Center for Future Civic Media, one of our main focuses is to create technical and social systems to help communities communicate better. And we want them to organize and share and act on information. But we know that the process of organizing, sharing, and acting on information takes a lot of different forms. And as citizens, we use media to help us find the local supermarket or to drive voters to the polls or to help share ideas online. But what happens when citizens use the media in ways that invite the attention of the law? For example, you know, what if you're involved in WikiLeaks? The First Amendment has always offered members of the press some degree of protection under the law in terms of what they do, what they write about. But what happens when ordinary citizens commit acts of journalism? And how does the law impact these acts? So that's what we'll be exploring today in our session. And we'll be looking at federal laws and free speech and blogging and government transparency and all that good stuff. So our speakers today, we have David Ardia, who's a fellow at Harvard's Berkman Center. And he's also the director of the Citizen Media Law Project. And this project provides legal education and assistance and resources for people involved in online journalism and civic media. We have Daniel Schumann, who's the policy counsel at the Sunlight Foundation. And at the Sunlight Foundation, he develops policies that further sunlight's mission of catalyzing greater government openness and transparency. He's also the director of Sunlight's Advisory Committee on Transparency. And this committee works with a coalition of organizations to provide political advice to the Congressional Transparency Caucus. And finally, our moderator and discussion leader is Mika Sifri. And Mika is the co-founder and editor of the Personal Democracy Forum, which is both a website and an annual conference that covers the ways technology is changing politics. Mika also runs TechPresident.com, which is PDF's group blog on how politicians are using the web. And he also, as a consultant, focuses on how political organizations and campaigns and nonprofits and media entities can adapt and thrive in the networked world. So with one little bit of logistics is when we do take questions, we will be using the microphones. So we will be passing them around. So if you have a question, we'd just ask you to wait, and we will run a microphone over to you. So without further ado, I hand it over to Mika. Thank you, Laurie. Is this on? So we're going to try and make this as conversational as possible. It's a relatively intimate group here. And our goal is not to speak at you but to talk with you. And I think we're really blessed to have a wealth of expertise here and knowledge to share. But I suspect there's also knowledge and expertise in the room. And given that we're living at a time when many, many more people are jumping in and deciding that they too want to participate in creating media, that in some way impiges on the civic conversation. We are all in uncharted waters together. And I think that there are minds in those waters that we need to know about. There are obstacles to stick with my mangled metaphor. There's some shallow reefs that you don't want to run aground against. And there's probably blockages that need to be opened up in terms of access to information that matters. And so we're going to dig in on all those subjects. Before I sort of ask each of our speakers to sort of make some opening remarks, I just wanted to ask people who are here in the room, how many of you are in some form today participating in creating your own media and publishing it? Just a show of hands. Wow, so almost everybody in the room in some form. Would you call those who would call themselves a blogger? Again, almost all and those of you who didn't raise your hand on the second question but did on the first, what would you call yourself? Just call it out. A journalist, okay? A photographer. A podcaster. Of course, content creator. Of course, content creator, okay. A share of field notes. And a share of field notes. All right, well, these are all, that's good. It's a topiary of the different types of content and media makers. I actually, before we were getting started, was looking for what the right shorthand word is. I don't think blogger really encompasses it. I think the idea that anybody can commit inactive journalism also doesn't quite encompass it because I think we do think of journalism as a certain kind of message or meaning making that may not be what somebody who takes a picture and posts it online thinks they're doing or somebody who just blogs about something personal. So we're going to get into that. But I think the hope today is to move into a conversational mode and get your questions and comments and not just hear us pontificate. But we have to allow a little time for that. And I think what's interesting about the two folks that we have is that David's work as a lawyer and advocate for advising both journalists, new and old, and citizen journalists, if you will, about their rights and under the law as they go about publishing online. He I think can be a bit more of a guide for us about where the law is strong and where the law may be weak. And with Daniel coming from sunlight, I'm hoping that he'll talk to us a bit about where the obstacles are around the information that citizens want to get their hands on and make meaning out of. And so the two of them complement, I think, very nicely on this discussion. I thought we'd start with David and, you know, if you'd just give us an overview of, I guess, the major features of the law that pertain to people publishing online and where they need to be careful or where they have safe harbor. Sure. Thank you, Mika. So when we were talking a little bit about the legal environment facing folks who engage in online publishing just prior to the start of the panel, we all lamented largely how Congress doesn't understand technology, how Congress doesn't understand media, and how it tends to not help and often hurt the situation. But there's actually one instance where Congress largely inadvertently did a pretty good job, and I think fostering the kind of open platforms for speech that we all enjoy today, and that is a part of the Communications Decency Act, which was passed in a omnibus telecommunications reform package in 1996, that included a very small provision that was meant to foster sites that wish to clean up user comments. And the reason why it was so important is you have to look at how the law approached publishing prior to the Internet. And that is it really saw two major categories of folks who can be liable for passing on defamatory statements and otherwise tortuous material, and that's a publisher versus a distributor. And in the pre-Internet world, publishers like newspapers were responsible for every single thing in their pages. That meant a letter to the editor that they ran. If it turned out that that letter defamed a neighbor, the newspaper stepped into the shoes of the person who wrote the letter. The publisher, that's a book publisher as well, but then the other category is the category of distributor. That's the newsstand, the library. And if the law were to hold them just as responsible as a publisher, then libraries would have to read every book. Newsstands would have to read every publication, and they probably wouldn't do that. So they wouldn't make those available. So the law really saw this important distinction between publisher and distributor. As you can imagine, when the very first websites came into play in one of the earliest, many of us are probably familiar with CompuServe, in the late 90s was sued because it had a forum called Rumorville, which is the first lesson is don't call your forum Rumorville, because all that's going to do is generate the kind of stuff that likely gets lawyers in action. And they were sued. And they said, no, we're a distributor. You should look at us like a library. Not like a publisher. And we shouldn't be responsible for the material. We didn't create it. And the court said, I agree. OK, we're not going to hold you liable. And four years later, Prodigy, which was a service developed by Sears, I think, at the time, held itself out as a family-friendly network. And it attempted to moderate and clean up the content on the site and said, we're special. You come to us. It's all going to be good family wholesome stuff. And another piece of content made it up on one of its forms. It was sued over it. And it said, well, we should be a distributor just like Prodigy. Don't hold us responsible for it. And the court said, uh-uh. Because you held yourself out to keep a clean site, you're going to be responsible for the content. And you're going to have liability. So immediately you can see what the repercussions would be of that. That is that you do absolutely nothing. And you're probably not going to face liability. But if you do anything to improve your site, you're going to potentially face liability. That's really a counter-incentive. And Congress stepped in in 1996 and included this little provision as part of an effort to stop harmful materials from getting to minors. And one of the things they thought was, if we give website operators like CompuServe and Prodigy the ability to clean up stuff on their site, and let's say some stuff slips through, that we're not going to hold them liable just because some bad stuff slips through. And that provision survived when the entire rest of the statute got struck down as unconstitutional in a case that lawyers love to talk about, a Reno VACLU, that actually the case was filed before the statute even went into effect, the rest of the Communications Agency Act. It was enjoined and then struck down. And the only part that lived on was a Section 230. And most lawyers who do work in the internet space would say that this protection for website operators who allow others to use their site to speak out, to upload information, that the fact that they're not going to be held liable for that material was what created, allowed things like YouTube and blogging services, and many of the sites that you run, those of you raised your hand and blog, and you allow users to publish on your site. Would you do that if somebody were to post a comment on your site that would turn out to be defamatory? Very unlikely you would do that. The reason that you're able to do that is because of this statute, which for all intents and purposes shields you from liability for any material that's submitted by your users. It doesn't protect against copyright claims, which is governed under a separate statute called the Digital Millennium Copyright Act. And that protection is granted to you only if you do certain things. And one of the things you have to do, which a lot of people find very strange, is you have to download a PDF off of the Library of Congress' website, fill it out by hand, send it back into them with a $105 check, designating someone from your website to receive notices when there's copyright infringement. This is called the agent, the copyright notification agent. And once you do that with regard to the copyright office, you then will not have liability if someone were to upload some copyright infringing material to your site. And another copyright holder complains about it. Your obligation is only to take it down, notify the user that you've received this complaint. And then if the user believes that they have, say, a fair use right to have the information, then they notify you. You can then put the information back up. You're free and clear. And the copyright holder needs to sue the user. Those two protections are very different than what exists in the offline world. And when I talk to journalists who work still on the print business, they just can't believe that it's a different regime. It's a different set of legal requirements. It is. It's a conscious decision on Congress to give the online space some breathing room. And Congress, I think, did pretty well. Certainly with the CDA, the Communications Decency Act, with regard to the copyright stuff, a lot of material gets taken down as a result of specious claims of copyright infringement. You see that happen every day on YouTube. So there are some folks who believe that that might not be the best result. But from the website operator's perspective, those two protections are really important. So very quick follow-up. Just to cover the lay of the land, you don't want to leave the audience with the impression that a online publisher is protected from liability for potential libel or invasion of privacy. I mean, other aspects of the law still apply, right? Absolutely. So the person who creates the content is still responsible for that. Neither of these statutes changes that at all. So if you're writing your own blog posts, if you're producing the information on your own, you still face all of the range of legal liability that any publisher faces. That includes defamation, privacy, copyright, trademark, and other forms of criminal and civil liability. This only applies. These two statutes I mentioned only apply in the context when it's a third party, when it's not you doing the creation. Someone else is using your website, your online service to do that. OK, so we're laying some groundwork down. Daniel, so we're in the early ages of an age of mass participation in using information, creating and sharing, and also taking advantage of existing official information, if you will, to make meaning of the world around us. What do you see as both the potential and the obstacles at work now in terms of people who want to do something with government information? Is it a clear playing field, or do we face problems? Thanks. So I hate to hearken back to your topiary metaphor, but in the garden there are snakes, and there are rocks, and there are all sorts of debris that's in the way of people using government information. Now there is, and I apologize folks, there is a gardener on the watch, and there have been efforts both within the executive and legislative branch to try to, sorry folks, clear away some of the shrubbery in the underbrush, but there's a lot more to do. So in terms of positive efforts, what we've seen with the current administration is the issuance of the Open Government Directive, which has been an effort to make more public information available online. Agencies that were under the authority of the president were required to make three high value data sets, whatever high value means, available online, and to undergo a whole system of actions in terms of how to make information available. So they had to put on their website, you know, if it's the Department of Justice, DOJ.gov, slash open, and on that site they would report on fulfilling FOIA requests, and they would report on communications that were going between the agency and the Congress, and a bunch of other information that's pretty useful. It also required the president had created data.gov, it required a lot of information to be put on data.gov, a lot of database information, which continues to be filled out through several hundred thousand data sets on there now, although most of them are map information. In the same time, the Congress is trying to get in the act a bit as well. Both in the House and the Senate, there was the Public Online Information Act, which was introduced, which would do three major things. One, it would talk about data standards. It would create a body that would try to figure out how do you make information available for people to use. If you put up a PDF of a giant data set, it's not particularly helpful. You can't really play with it. You can't really use it. But if you make it available in a slightly more sophisticated data format that's structured in certain kinds of ways, then people can start playing with it. It makes it a lot more useful, a lot more helpful to people who want to interact with the information to mash it up and use it in different kinds of ways. It also did something which the government is not good at doing at all, and it would have required the different branches of government to actually talk to one another. It would have gotten the executive of the legislative and the judicial branch in the same place at the same time to try to figure out, not rules, but sort of principles to govern how they make information available. These two things would be very helpful, and then sort of a third piece was sort of the hammer to the nail, which is if there was information that was supposed to be publicly available, and this would have changed the presumption so that most information would have to be publicly available, if it's not online, would have given citizens a private right to sue, to encourage that the information be made available online, and the lawsuit mechanism was similar to that under FOIA. Now, I don't know if you've noticed, but there was an election recently, so Congress is changing hands, at least the houses, and what that means for all these legislations that will have to be reintroduced is gonna be new priorities. What we have seen is both with Democrats and Republicans, both in the executive and in the legislative branch, there is great desire among many to push forward transparency legislation, so we will see what happens. So let's go to some of the roadblocks, and I'll run through these anecdotally and quickly, since I think we have a lot that we wish to chat about. So let's say that you're interested in congressional ethics information. Legislation, there's rules in the House and the Senate about this information needs to be made available to the public. This is one of the great reforms that came about. So how would you go about and get it? Well, there is a room in the basement of the Cannon Building. The Cannon Building is in Capitol Hill. Capitol Hill, of course, is in Washington, D.C. You have to go there, request a certain subset of 19 documents that we have identified, having to do with personal financial disclosures, conflicts of interest, all these kinds of things, and you can go and review them, which is pretty helpful. But you have to go to Washington. You have to go to this particular room between nine and five, Monday to Friday, during, of course, regular business hours. You can't email it to yourself because the computers on which these databases reside are not connected to the internet. You can't burn it onto a CD because they don't have a CD-ROM drive connected. You can't stick your thumb drive in there because they've glued in the ports. The only way to access this information is to take it, print it out at 10 cents a page for thousands and thousands of pages of information if you're interested in reviewing it. And of course, if you want to make use of it, well, so you just have to go and hire someone to go rekey in all of the data that they already have in a database so that you can make use of it. This is public information, not available online, non-useful formats, and it's really, really difficult to get your hands on it. And even when information is made available online, it's often not done so in a very useful kind of way. So let's talk about earmarks. Those have been in the news a lot. There have been several efforts over the last couple years to restrict the use of earmarks or to make more information available about how they work. This came about through 2007 law known as the Honest Leadership in Open Government Act. And what it required, among other things, that in the later rules change, was that each member of Congress is required to put their earmarks requests on their website. Each member puts it on their own website. Now, if you wanna go and actually find it, good luck. We actually undertook the effort to go and look at all 435 house websites to look for this information. We found it in most of them. It's really hard. They're under misleading names, oftentimes in PDFs. If you wanna actually analyze the information, it's really hard to do. Folks over at Washington Watch undertook the effort. They had a huge crowdsource effort where people, including myself, went through and hand entered all the data so you could start figuring out who gets what earmark and for how much and how does it work. Now, there is a database that exists, both in the House and Senate, that has all of this information. But we can't get our hands on it. It's internal to the Appropriations Committees and we have so far been unsuccessful and convinced them to make it available. Now, there is legislation pending to do this. In fact, I think there are about 50 bills that are pending to make these databases publicly available. The most notable one in the Senate is sponsored by Senator Coburn. It's known as the Earmark Transparency Act and it would basically make these databases available publicly online so you could sort it, search it, mash it up, make all sorts of interesting use of these kinds of information. And it would put it up in PDFs, which of course are difficult to use, but in some sort of a rich data format. So this is what our government is doing. Sometimes they're helping with data.gov. Sometimes they're taking away with earmarks. And let me give just one more quick example that I particularly enjoy. I was interested in information about TARP, which is the Wall Street bailout. And the government makes available a whole bunch of PDFs that has all, basically were all of the $787 billion. I think that's the right amount. Has been, has been, yeah, they're not sure either. Where that money, maybe it's $877 billion. It's a lot of money. Where all this money is being spent. So they make it available in PDFs, but they've also made available a database. The database is fantastic, searchable, sortable, sortable, downloadable, but they add a license provision that when you download it, they have to retain control. So if you use it, you have to cite them. It's fine, I'm happy to cite them. But they also say they are willing to change their terms of service. So at some point in the future, they could say, you know, it's been wonderful that you've had this stuff, but we don't think you should be able to use it that way or they want to change how you can access it and they can simply pull it back. Now, would this be upheld by a court of law? I don't know, I'm not an expert in that realm, but I do know that this is an impediment to people out there who want to use this information to talk about what's going on. Citizen bloggers run into all sorts of problems. You can't reuse video from house committees because of it's copyrighted by C-SPAN. You can't use this type of information. There's whole sets of data that's incredibly helpful that are available in some kind of way, but not in the ways that really leave it open, free and clear for people to use without concerns about the government coming and knocking on their door. And so with that, I think that's a pretty good introduction to some of the barriers that are faced by citizen journalists. I'm happy to talk about this more. So I have a question for both of you, which is, and first to David, really, how much is, how many collisions are happening between the citizen journalists of the world in the US, especially, and the law? I mean, you're, at Berkman, you've set up a program that provides a lot of free legal advice to people. And how much of this is people who are actually in the middle of fighting some authority that is going after them versus people just looking for advice? And is there any kind of chilling effect going on? What do you see happening in terms of the space right now? I think your last point about the chilling effect is the most concerning thing, because what we see is really just a tip of the iceberg when folks come to us and ask for legal help because they've received a lawsuit or a threatening letter. There are probably tens, if not hundreds, more who don't come to us or don't come to anyone. They don't post it on their blog. They just take the information down and they go away because they can't afford to lose their house. And so we see a growing number of these. They've been increasing every year. I'd say relative to the proportion of blogs that are out there and websites that are out there, it's a very small percentage. But if you're the one who receives it, it doesn't matter if you're in a very small percentage, it's still a legal threat and potentially can involve a lot of money because the other problem that, in the United States we have a system where generally speaking, even if you win your case as a defendant, you're not gonna get your legal fees back. You're gonna be out of pocket. Even if the case really had no likelihood of success in the first place and it gets dismissed at a very early stage, just the fact of going out and getting a lawyer can be expensive. So we try to help with that by having lawyers who are interested in doing this work for free. But there aren't enough lawyers out there to help everybody and not everybody comes asking for that help. So the chilling effect is, I think, far more extensive than any research that's been directed at this question has been very little research directed at this question. And I think one of the things as lawyers need to think about, and those in the room I would ask as well, is that in the past we had very substantial institutions doing some of this government accountability work. The New York Times, the Washington Post could stand up to a threat. I mean, they could publish information that the government claimed violated national security with the expectation that they'd have the very best lawyers right there ready to fight for them and they could afford to have that fight. WikiLeaks does it by having their director stay out of the country and fly all around the world and servers all over the world so that no single government can stop that. That's their model. That's also a fairly expensive and intensive model. But for those of you out there who, let's say, you run one site and you discover some information that, let's say, shows government corruption or somehow ports a powerful institution in our society on the defensive, you run the real risk of having them lawyer up, come after you, and put you in a position where you can't afford to stand up for your rights, and that's a big concern. Daniel, in terms of what you see in Washington, are there cases where citizen journalists are also being hindered, I mean, not just by the data itself being tucked away in some room where you have to make an appointment, but whether it's legal practice or common practice. I mean, there's one in particular that always bothers me, which is the whole issue of credentialing. That's an easy one, but. No, I have two. No, you don't. So actually the question of credentialing is a very good one. When you look at how the House and Senate press galleries are set up, they recognize two types of media. Print and television. Well, that leaves out, of course, a whole bunch of folks. And, of course, print and television have a very great incentive of keeping out the great unwashed masses, which, of course, is the rest of us. They haven't changed the rules regarding who gets access to the committee video feeds, for example, or the feeds from the House or the feeds from the Senate in quite a long time. Those rules haven't changed since 1994, I believe, or 95 the last time the Republicans took over the House. And if you wanna go and cover a hearing, it's just about impossible. You do it basically at the pleasure of the committee and you have to apply ahead of time. And, of course, if they don't like you or if you're affiliated with the other side or a whole other series of reasons, they can simply lock the doors on you. And this does happen. This doesn't just happen to journalists. They also do this occasionally to people who want to videotape actually from the other side of the aisle, which is sort of funny, that they would do it to their own members. So there are a number of examples along these lines where people who are members of the civic media simply can't get in the door. One sort of positive aspect is that, at least for now, with the change over in the House, there does seem to be an appetite to reexamine the House rules. Sunlight issued a series, I think it was 78 or 80 recommendations to change the House rules. I had a very fun time reading through all 70 or 80 pages of them to come up with those recommendations that include changing so that bloggers or people who are recognized in certain kinds of ways can participate. There are sort of other pieces to this as well. So we're talking about it from a credentialing point of view, but there's also, how do you get access to the video feeds themselves? We're talking about this a bit before. Is it filtered through C-SPAN, which owns the copyright? Or is it in some other way restricted from people being able to reuse it and to mash it up and things along? Those lines, problems that, I hate, it's not mainstream media, but maybe traditional media, I guess is probably a better phrase, that traditional media simply don't run into. Oftentimes, hearings will simply not be covered for lack of interest by C-SPAN or the major networks, but there are many other people who would be more than happy to do so, but they simply don't have that opportunity. Right, I mean, and just, if I went to a committee hearing and wanted to take pictures, I'm not allowed to unless I have a credential to do that. Yes. That's correct, yeah. Okay, I want to start to open things up and I said we wanted to make this as conversational as possible. So, and not that I don't have more questions to ask, but I want to give the audience an opportunity to chime in at this point. If anybody has something that they do want to ask or a comment you want to make so that we're not waiting until the last half hour for that to happen. So does anybody want to, yeah, go to a mic. Yeah, we have a couple people in their mics. Hi, Mark Tomizawa, six degrees of innovation, a known suspect in Mika's world. Former journalist, someone who's exploring just what the full rights are of an independent citizen. Because I've found that actually when I go and talk to CNN folks, I know I can take more pictures on Capitol Hill than they can. I can take a private camera around and shoot photos they can't. So I'm actually interested in pushing it all the way to the end and not even calling it citizen journalism, just calling it citizen and calling everything else conversation, witnessed conversation, recorded, relayed conversation, so that's all media. And I'm wondering who is, when people use the word journalism, it immediately triggers a frame that has all kinds of rules around it. So I'm wondering if we just for a second kind of chop off the J word. What does that then let us do as people who are paying for C-span, who are paying for Capitol Hill, who are paying for the people who are working there? I mean, what are our rights fully as citizens and what are the rights of kids who aren't even voters or workers? And so they're not even like a lobbyist. You know, I'm just looking at a variety of ways in which people can re-engage rather than participate in civic engagement, which seems to have a whole lot of rules up front. And just saying, well, what rights do we have sort of natural rights? And the other small piece is fair use. In light of all that, I know that fair use is transformative. That's the measure. And I know the people at Temple and the people at American University are working on that. So if you take the concept of citizen, fair use, stuff we've paid for, where might that get us? Because it might be some interesting tests if people knew what should be tested. Either of you. So Mark, you were asking about sort of rights of access and one thing that's interesting about the way the Supreme Court has looked at rights of access when the press has brought these cases is it said that the press has no additional rights that the public doesn't have. And that these are really public rights that the press is acting on behalf of the public. So for example, the right to be present during a trial, during a criminal trial or a civil trial. The court has said that's a fundamental right. That's part of the way this country was set up that our judicial system be open to public view and access to government property and to government activities and those kinds of things. So the Supreme Court has not generally said that the press has any special rights. And as you pointed out, in fact, as a citizen you may have rights to get places that the press may be excluded from. And that really comes up from the way a property owner uses contract law to limit access to the property. So if you were to look at the back of your ticket to a sporting event, it's got a lot of fine print on there. And one of them is that you're not going to take photographs and otherwise engage in activities that that, I'm talking about professional sporting events. Many of those leagues have sold those rights for a lot of money to broadcast companies. And we're starting to see fights, for example, at NCAA Games where folks are live blogging and they're getting sued for doing that. It's violating the contractual right that the stadium has when it allows you in saying that through this small print you've agreed to that. And we all had to sign little waivers to be recorded and let our images be out there. But we actually knew we were doing that. And that was voluntary. But when you go into a stadium and you just want to report on what you're, you know, just tell the world what you're doing there, you don't know you've given away that, right? So I'm not sure that's consent. And some courts have said that it therefore may not be enforceable. So the law comes into play in a lot of different ways with regard to access. And your point about sort of that we need to be as expansive and possible in viewing citizen rights, I think that's exactly right. The problem is when it comes into play when you're in these sort of non-governmental forums like sporting events, other public events that are on private property. Or say a politician's fundraiser. Yeah, absolutely. That's right. That's right. And Daniel may have something to mention there. Because I'll talk about your fair use question in a minute. But even in the governmental context, you run into a lot of problems. If you want to go and record the floor of the House of Representatives, you can try. But before you go in there, they take away your cell phone and any other electronic devices that you may happen to have on you. So trying to exercise that right in that space is going to be impossible. There was a sort of funny example. Representative Culverston from Texas had a hearing on the Supreme Court had to do with funding for them. And Justice Breyer and Thomas attended. And Culverston has, I forget what they're called, they're like a flip phone. A flip camera. Where he took any broadcast, Justice Thomas. And he said, see, it's not that hard for the Supreme Court to be live online. Because I'm doing that right now. Which didn't go over that well. And if you want to record what's going on in the courts, they have a supreme authority over that venue. Unless, of course, Congress passes a law changing how they do things. And if you try to go into the Supreme Court with a camera, that's not going to work out so well. In fact, even if you go into private forums, there have been a number of examples, I think, most recently with Justice Scalia, where someone was trying to record the event where he was speaking. And I guess the Supreme Court police came around and confiscated the equipment and erased it. Now they didn't actually have a right to do so. But they did it nonetheless. And this has happened more than once. So if you try to go into a member office with a camera, you're going to run into security questions. They'll be afraid that you're trying to show away for someone to come in and shoot it up or something on those lines. So as a practical man, there is a legal possibility within the First Amendment of things that you theoretically can do. But practice, unfortunately, limited in ways that don't necessarily make sense. And as a private citizen, it's very, very hard and very expensive to try to push back against that. OK, well, we're at MIT. So I have to ask this question. I mean, this could be one of those new pens that records everything we're saying, right? And the glasses that you're wearing, I recently saw, we're approaching the point where miniaturization of video cameras can be just embedded in somebody's glasses. So isn't technology going to obsolesce some of these rules? Or do you think that they'll rush to make you take your glasses off before you go to a congressional hearing? So that's a really good question. And I don't know the answer to it. I think that they have sovereign ability to control their own space. And if you go and violate their rules, it's really an interesting question of what they're going to do to you if they can do anything. For example, if you go and take live feed of the House floor and you reuse it for some other purpose, now is Congress really going to come after you? What authority do they have? What are they going to do? How are they going to see you? Is it going to make them look worse by trying to do this kind of thing than by simply letting it pass by? I don't know the answer to these questions, but it's a really interesting one. The flip side of that, however, is the privacy expectations of those around you. And in that space, law has a long way to catch up. The most of the privacy rights that we recognize are built on a foundation of a reasonable expectation of privacy, which by definition is a slippery slope. And it changes over time. And as these technologies become more accepted, then the expectation changes. And more and more gets permitted. And that's really where we're facing now is we're starting to realize that the ways the law thinks about privacy don't work. They don't work in today's world. And they certainly aren't going to work when we talk about miniaturization and where recording devices are naturally part of what we wear as we wear smart clothes with nanotechnology. And all of these things are in mesh networks. All of that information is being communicated, all of the environmental variables, everything is being recorded as a default. The law really doesn't know, and Daniel's point was right, we don't know what the law is going to say on that. But one thing I know is that the law doesn't have a very good answer for it. Well, that actually, it's a good segue to a question I wanted to ask you. And then we'll get back to the audience. Section 230, which you started out with as the bulwark of a lot of freedom on the web for websites to host free-for-alls. Do you worry that some violation of privacy, I mean, I'm thinking of the auto admit case, where two, I think they were Yale Law School graduates or students, two women, were basically bludgeoned in the comment section of this site, where lots of law students sort of freely and anonymously talk about people. And because Google would surface those links high up, if somebody did a biographical search on either of these people, they were understandably upset that their reputations were being completely dragged through the dirt. They've sued. They've managed to uncover some of the people who made some of these comments and are kind of holding a sword over their heads. The site owner, I think, is still immune, but is also feeling a lot of pressure. And is Section 230 really that stable? Couldn't there be a case where it'll fall for political reasons? Because someone is allowing child pornography, prostitution, slavery. I mean, there are all kinds of bad stuff online. So are you saying when about it's holding firm? It doesn't sound like Congress really knew what it was doing from your description. And Congress can get swayed very easily by these bursts of popular upset. I think it's very unlikely we would see complete repeal of the protections. Business models have been built on this. They're now powerful, well-financed, armed with lobbyists. And so I think you'd be unlikely that Congress would repeal it. I'm more concerned about the sort of death through 1,000 duck bites where little pieces are carved out and the Craigslist killer here in Massachusetts, where a fellow used Craigslist to make contact with women that he then allegedly killed. And the problem is, and I'm sure that a lot of folks here at MIT think about this in their work, is that when you build a tool, it can be used for good and bad. Does that mean that the tool itself is bad? And I think many of us would agree that there are horrible things that are said and done through the internet, but that overall, the impact has been far more beneficial than harmful. And as we start to try to fix the instances of bad conduct, we run the great risk of, because our efforts can only be, law is a very blunt instrument, we may be able to correct the thing we want to, but at the cost of changing a lot of other things that are very good and a lot of speech that should be protected. So I hope that any efforts would keep that in mind, and that would be a kind of conversation. That's a pretty sanguine view of the way Congress works. And in many cases, they don't work that way. So I do worry about the really bad set of facts creating a case that sort of pushes an effort to carve out some exception. And once we go with this carve out approach, I worry that we would start to carve out lots of different kinds. What about financial fraud? OK, well, then financial fraud gets carved out. Prostitution gets carved out. OK, well, how about defamatory speech that's been determined by a court to be defamatory? OK, let's carve that out. Before you know it, we're left with Swiss cheese, and we're really not giving website operators. We'll put them back in the position where their fear of legal liability makes them reluctant to allow their websites and online platforms to be used, because you can imagine, if we put liability, let's say, on your ISP, the entity that is essential for you to even connect to the internet in the first place, if we put them in the position of being responsible for the content they make available to you, they would use deep packet inspection. They would monitor everything you read. They're probably doing that already. And they would use all the tools available to them, which are quite extensive, filtering tools available even today, to make sure that only the things you received were the most banal and least likely to result in liability. I would think that would be a world we don't want to live in, and if we can keep that in mind as we move down this road of trying to repeal a statute that's been so important to that, that we be careful. Do you want to add anything to that, Tim? OK, let's take it back to the audience. Yes? I'm going to the point of going forward with the discussion and the topic, which is not going to be covered in any way she performed one day, or these last 10 years, because it's a moving target, but it's also about technology allowing a head of the legislation to have press explode with the one in a million bad apple, so to speak. That's a tendency of media in general. The National Enquirer still lives. It's not going to go away. There was a conference, and it's a yearly conference in New York City. It's called Open Video Conference. I believe it would be .org. They have speakers from very different silos of interest, including the monitor people that are trying to anonymize information, but still to be able to sell trends that they are able to with their tools, et cetera. So the one of the four threads was in the main room, the auditorium. That was videoed. And the other ones were just scattered. I don't know exactly if those videos are up yet. This was October 1 and 2, just a few weeks ago. But they had just looking at the resources, looking at the speakers and the topics, and then perhaps giving some of the video of that one room has addressed these and does address the pre-beta versions that are out there, including the fair use. And the very beginning of, I think it was Saturday, cannot remember her name, but she was championing the successes that are not in the press about fair use and saying that instead of the regulations, which are very tricky to put and pin down, can it be three minutes? Well, if it's a six minute song, three minutes is half that song. And so it's not even defined as how many minutes. It's like a minor part of that piece of media can be used for fair use with good intentions and with public intentions. Parody, it can get away with creativity and parody and some of the big names, even. You can flip them into some of the big shows, radio and TV. And they are getting success with that. So she's saying, don't ignore that. Get more of that in some of our information when we have these forums. Do you have a question? I do about the filters. Just in this last week, we were announcing how some of the ISPs finally have been filtering for the cell phones that are for minors. Anywhere from their talk about how many cell phones. Well, you know, there's 3,200. What they quoted was, it was WBZ, 3,200 texts for one high schooler in one month, just the texts. And so just even the cost was one factor of filtering. But the actual testing of these tools, is there any place that will be ongoing to allow for continued discussion and bringing to light? Anybody know that somebody in an institution is ongoing? So I'm thinking it should be an academic as opposed to business where they're sold off and then you get what happens with the information there. Is there anybody that knows of anybody in academia that's considering having an ongoing discussion board blog about these issues? So filtering worldwide is a very complicated topic that a lot of organizations do pay attention to. Just down the street where I work at the Berkman Center, there's a group called the OpenNet Initiative that looks at filtering across the world. And they do reports every month or two on a different region instead of countries. There's a Center for Democracy and Technology has also been looking at that. EFF looks at filtering Center for Democracy and Technology, CDT. Now that's definitely an issue that's of great concern to those of us who care about free speech rights. And I'll tie your point, Mark raised it as well, about fair use, which is that it's an essential doctrine because it limits the copyright holder's ability to stop subsequent uses. And the courts have said that it's essential to the copyright law being acceptable under the First Amendment. And so we all need to be vigilant about making sure that we're putting forth our fair use rights when we're using the work of others and someone is claiming that it's infringing. And that means being aware that you can raise that as a defense. It also means getting legal help rather than taking information down if you're faced with a cease and desist letter. And it means supporting organizations that do work around fair use. Stanford has a fair use project that is exclusively focused on fair use and the fair use right. Because all of us have an obligation to be vigilant about protecting our rights. We can't rely on government to do it. It's Daniels showing that they put all kinds of impediments in our way. So we each have an individual obligation to do that and fair use is one of those ways we can do it. Are there questions? Yeah, go ahead. If you say who you are, also, that's always nice. Andrew Whitaker, I'm with Center for Future Civic Media. So while acknowledging that these issues are largely at the federal level with First Amendment questions or copyright questions, are there questions or concerns that you have of what's happening at state or municipal levels? Particularly given that a lot of, I would say, most citizen journalism or civic media happens at the town or neighborhood level. That's a really good question, Daniel. So actually, the concern, Sunlight Foundation focuses at the federal level, but the concerns at the state and local level are as great, if not greater, in certain circumstances. There are stories of people, for example, trying to record encounters that they have with the police, where they'll turn on their iPhone and try to record what happens. And oftentimes, the result is that they get their head bashed in. Things that you wouldn't necessarily see. The federal government is much smaller in certain ways, so you wouldn't see those kinds of instances. On the federal level, there's more awareness, I think, in many instances of these kinds of issues. But if you try to go to a town hall meeting and try to record it, you're going to have a really hard time. You also don't have, so federal information is not subject, federal documents are not subject to copyright. State and local information, however, I believe, is. So that states can control how that information is disseminated, how that information is used in ways that the federal government simply cannot. And this is actually true in most foreign countries as well, is that there's something called its crown copywriter. There's other terms for it as well, where power over the information is retained by the locality, where they will sell it. And if you want to find out the local building code, it could very well be that you can't get your hands on it, or you have to pay a fee to use it. And it's going to be the same thing for all sorts of different types of records. You have to rely on local government to have passed a local equivalent to FOIA that works well, that there's going to be local enforcement in the right kind of way. You're going to have much more localized political factors that make things harder. I think on the state level and local level, you actually run into the same considerations, if not even more difficult circumstances. I'd second Daniel's point that it's as bad, if not worse, at the local and state level when it comes to access to government information through these formal legal vehicles. But it's also the case that we're starting to see a lot of innovation and experimentation. Because the federal government's a difficult party to deal with, you may be able to work out deals. For example, app developers who get access to bus information and make that information available. We're seeing a lot of that. Crime data, the aggregation of crime data where a local website works out a deal with its police department to get an XML fee, assuming that the police can provide it in that way, or they get it in raw form and they turn it into something that's usable for them. That's also an area where there's been a lot of experimentation. And there's a group here at MIT called Extract, which crowdsources environmental harms and uses geographic information systems to pull all that together into a multi-layered map that uses all different kinds of government sourced information to show us the kinds of effects that oil and gas drilling are having around the country. So in that sense, people are working outside the law to make important things happen. And my job as a lawyer is to make sure the law doesn't get in the way of that, and even better if the law can help facilitate that. But we are seeing a lot of exciting experimentation around the use of technology to fill local information needs in a way that sort of gets around the impediments that the law puts up. It's just occurred to me. There are a lot of sites that host user reviews of products, of people, of restaurants, of services, Yelp, ratemyprofessor.com, and so on. Are they just as well shielded by Section 230 as the more political journalist type of political blog? Or have you seen cases where a restaurant owner feels like they're being maligned? What's their recourse? So far they have been shielded by Section 230. No claim that I'm aware of has been successful against a review site like that. However, a lot of lawyers have been creative about their arguments. And for example, Yelp has faced several claims where the party bringing the suit has alleged that Yelp offered to create positive ratings for them if they paid for that. And essentially almost like an extortion type claim. In the cases where that's been raised, there's been no evidence to demonstrate that. And the courts have been dismissing those. So there could be situations where a review site can lose its protections by engaging in some sort of activities that a court would find, take it outside of their protections. Now the interesting thing, so the hotels have been really unhappy about this lately. And I just read a, yeah, the bed bug stuff as well. But I just read a great article on Slate, not written by a lawyer. But it was talking about how those hotels that have embraced consumer reviews, especially through TripAdvisor, are doing fantastically well. These are small, non-chain hotels that wouldn't otherwise be able to get folks because they're not the West and they're not the High. Nobody heard about them. Maybe they're going on TripAdvisor. They're seeing that they're high ranked. And they have people monitoring these complaints. Someone complains that the light bulb's out. They see that, they tweet it. Someone responds from the hotel because they're monitoring it. And they get somebody up, then they fix it. If they get a bad review on TripAdvisor, they address the problem and they talk about it. And they don't go and sue about it. They engage through the same channels that the complainant was using. And as a result, they're finding that they're doing much, much better taking that approach than, you know, I'm going to sue you and force you to take it down. And I think as we move more towards folks realizing that, that this is empowering to consumers in the past if you had a bad experience at a hotel, you could write a letter to your editor and hope they put it in there. But like I told you, the newspaper would be liable if it was defamation and they're probably not going to run it. Now you can post it on Yelp. You can post it on TripAdvisor and feel like, you know, you've had a cathartic experience by getting it off your chest. Others can benefit from reading that. And perhaps the hotel can read it and do something about it. And so I think there are better ways to look at it than just how can hotels that get bad reviews or restaurants that get bad reviews get them taken down. To me, that's the wrong perspective to have. OK, well, that will come to you in a second. A follow-on to that, though. So the Federal Trade Commission recently decided that it needed to get into the business of warning bloggers about potentially needing to reveal if they're making a product endorsement, if they have some sort of financial relationship with the company that makes the product. So how do you advise people in that space? Because I totally agree with you. This is empowering consumers. But has the FTC created a new potential mind that people might not even realize they could be stepping on? Are there affirmative things that you have to do? If you write about products on your website, you know, you happen to blog about cameras because that's your hobby. Has the FTC sort of intruded here? Or what's your read on how that's playing out? So I think Mika's referring to, last year the FTC issued guidelines for bloggers and other users of social media that received some financial compensation as a result of a product endorsement. So if Canon sends you a camera for free and then you write about it positively on your blog, the FTC would see that as a problem. Now, the FTC has said that they will not seek financial penalty from the blogger. They would simply send a letter and say that you violated it. And they would actually go after Canon to do it. And these guidelines were released last year. The FTC says it's not a change in policy. It's just a clarification of policy that this is sort of what they call unfair trade practices. They've always had jurisdiction over it. The only one entity in the year they've gone after is Ann Taylor, the clothing manufacturer for giving away gift cards to a bunch of bloggers. And then not, those bloggers didn't disclose it. They did not go after the bloggers themselves. So I generally advise people that if they're engaging in product reviews and they're receiving some kind of compensation, whether it's a free product or some other benefit, that they be transparent about it. Which is one of the fundamental values of journalism is to transparency. And so that actually I think improves the quality of the information they're providing to their readers by saying, I got the product for free. I still liked it, or I didn't like it. But to be transparent about it. And the FTC is going about it because what they're concerned about is astroturfing, where a company spends a lot of money to get a lot of people to pretend like they're users of the product and to use social media to flout it. And in their view, that distorts the marketplace, the amount of information that's available. So that's what they're trying to address. I think that's a laudable objective. Of course, the devil's in the details. And so far they haven't gone after individual bloggers or social media users. OK, that's good. And there's actually, there's sort of a flip side to that as well. And there was just an article on this recently, not astroturfing, but astrotweeting. Or where, of course, corporations go on or whoever it is who's selling something and they go onto your blog, they participate in the bog, or the review on Yelp, and they say, this is a great product. Or they say, hey, this politician is really interesting. You should go to his website. There was recent discovery that 50,000 links to the GOP website from a bunch of fake folks on Twitter. And the question is, and this happens on both sides, but the question is, we're talking about minefields for people trying to run these kinds of fora, what obligation do you have to go through and say, this person is real and this person is fake? From a legal point of view, I don't think you have much of one at all. But certainly, as you're trying to do these kinds of things, trying to run a well functioning site, do you want to force people to disclose their identities? Are you going to set rules for how people engage with the folks that you're trying to engage with? There's all sorts of things that are wrapped up here that are very complicated. Move a question here. Yeah. I'm James Miller, also with the Center. I have two requests to make, but before I do, the FTC intervention is really interesting. I didn't know about this. Here's a rough analogy. In the old days, if a professional journalist was a travel writer and she had her hotel room paid for by the hotel or the airline gave the newspaper the tickets to go to the place and write the story about traveling, that was not a legal issue. It was considered to be ethical. And for a long time, it wasn't even that. It was just the way you did business. So what's causing the shift would be an interesting question to ask. I have an answer for that one. But may I just lay everything? Yeah, of course. Otherwise, I'll forget what I have to ask you. The second thing I'd like to raise is actually a follow-up to Andrew's comments having to do with jurisdiction. And it also takes us back to the earlier question about who is and who is not a journalist. And that's about shield laws, which are only a state phenomenon and uneven at that, although there was an attempt, the closest attempt yet, to make it a federal law. So what are they? Do they work? Are they worth pursuing, either for the old media or for the new? And then I had another question, which I really have forgotten. Maybe it'll come back to you. Probably not. But I'll hold onto the microphone anyway. OK, shield laws is a very good question. Yeah, so first on the FTC part is the FTC issued clarifications two or three months ago to address this very question. And what they said is that all those old institutions actually had procedures in place to make disclosure if they felt it was necessary, number one, and number two, that readers of a travel section of newspaper assumed that the journalist was getting it for free. I actually disagree with that. But that was the FTC said why they're treating social and online media differently than the print world. So shield laws, I think they're very important. And you're right, we do not have a federal shield law. We've got, I think, 26 or 27 states or so that have them. And they can be very important, but many of them were drafted with a different media environment. And they don't always map well to online media. Some have very narrow definitions of who's covered. Some use institutional definitions. And that's been the versus a functional definition. Is it what you do that would qualify you? Or is it who you work for that qualifies you? That's been the big issue in the federal shield bill, which seemed over this past Congress to make its most greatest progress it ever has. But then I think that the WikiLeaks situation seems to have pushed that back. And I think it's unlikely we'll see anything come out of the rest of this Congress. But it really comes down to that question, which is who is a journalist? And there isn't agreement on that. Is it who you work for? Do you work for a newspaper, a television station? Does that make you a journalist? Many people would say that that enshrines a view of journalism institutions that's no longer accurate. Politico, what are they? They're an online newspaper. Or even we do a lot of work with small investigative nonprofits that are three or four person shops where investigative reporters have decided to band together to work through online medium that clearly engaging in journalism. So it's very hard to come up with a definition that institutional definition that works. And in my view, a functional definition that looks at whether the activities look like journalism to me is the best approach. Well, there was one blogger who went to jail for refusing to. Josh Wolfe. Right, so you want to say a bit about his case? I mean, what was the upshot? Well, the upshot was he spent a long time in jail. And but most of the journalism organizations really rallied around Josh. He was a video blogger who was recording the protests in San Francisco for one of the G8 summits. This was, God had been maybe five or eight years ago. And California has a shield law and the local prosecutors subpoenaed outtakes that he didn't make available on his blog. And one of those outtakes they believed showed some of the protesters lighting fire or damaging a police car. And so they couldn't get the information from him because he was protected by California's shield law, which was a pretty expansive definition of who's covered. So federal prosecutors came in involved and they said that because federal money was used to purchase the police car, the local police had used federal money in part to purchase the police car. It was therefore a federal issue. And federal prosecutors subpoenaed the information. He refused to turn it over. And he spent several months in jail. At one point, I think he was the longest serving journalist ever to serve for refusing to turn over information on a subpoena. Eventually he made the information available through his website, not directly in response to the subpoena, but he uploaded the outtakes, which actually is a lot of news organizations are starting to do that. A lot of video broadcast journalism can now, they can upload the outtakes and avoid the subpoena issue. He did that and he was eventually released. But he's, I think, if not the longest, one of the longest serving journalists. And that was really a call to arms for a federal shield law, which so even if you practice journalism in a state that has a shield law, that state shield law isn't gonna prevent a federal prosecutor from coming after you for information. Similarly, it wouldn't protect you in a civil case in the federal court as well. So two things. One, when I worked for a media organization, what was routine practice was you put up whatever information that you're using and then you tape over everything else so you can't get subpoenaed. And I'm sure that's probably fair. This was fairly common practice across 15 or 20 TV stations across the country. I'm sure that's pretty common through TV networks generally. This kind of practice may spread because you can go after citizen journalists in that way. The other thing, and I don't wanna get into this too much because it leads into deep water that will cause me to drown. But when we're talking about who is and who is not a journalist, it brings us back to a recent Supreme Court decision. This is the Citizens United case where you had a activist entity create a, I think it was a book, wasn't it? It was about Hillary Clinton. No, it was a movie. Thank you, thank you. It was a film about Hillary Clinton and the question is what is this? And what is the role that they're doing? Is this journalism? Is this something else? And the key question in the first go round of oral arguments was, well, does this mean that the government can control the publication of books? And that's what caused the re-hearing later on and ultimately probably helped trigger the decision that came out as well. So trying to draw that line in a way that comports with all of our understanding of the First Amendment is very, very, very hard. And I don't think anybody has a grasp of that yet. So. They haven't taken the microphone away from me. I did recall the last thing. You've spoken a lot about liability. But in fact, what often seems to us lay people to be a fearsome ironclad law that puts people at risk when they speak isn't that at all. And I don't mean to embarrass David Artia, but I noticed reading his biography online that at one point in private practice you were vetting articles for libel for a tabloid newspaper. And it would be helpful to hear you talk about the line that you would walk in giving legal advice to a journalist so that a certain expression can take place but doesn't put the journalism organization at risk. Sure. So I would say I did pre-publication review for the National Enquirer for several years. That's what James is referring to and talk about an interesting client. Any lawyer who does, that's called pre-publication review would say there's as much art in it as there is science. I mean, every lawyer first and every journalist wants to get it right. So the first question is, is everything correct? Do we have good sources? Have we corroborated those sources? Have we checked everywhere we need to check? And if you feel strongly that the information is correct then the likelihood of first of all getting a lawsuit is diminished but your ability to defend it is very strong. But lawyers look for not just did we get it right because people sue even when you get the story right. It's how quickly can my get my client out of the case. And that often turns on privileges. Things like if you're reporting on court cases being able to, I'm getting a bit deep in the details here, but you asked. That, you know, if we're reporting on court cases are we referencing those court cases sufficiently to be able to claim what's called the fair report privilege? If not, let's do it the right way. How many sources do we have? If we relying on anonymous sources we know the, we believe the information's right. Are we willing to out those sources to defend ourselves in a liable case? Many times the answer to that is no. Okay, well can we get other information we can defend ourselves with? So it's first of all, is it factually correct? Second, can we be in a defensible position in litigation? Then the third is really what kind of a plaintiff could there be in this case? Are they someone who's likely to sue? Are they a public figure? Or are they a private individual? Because that has a big difference in the degree of fault that's imposed on a publisher. Actual malice is the highest level of protection for fault that a defendant would wanna have in a liable case that's for public figures and public officials. For private individuals they only have to prove negligence, which is a much lower burden. So what type of a plaintiff are they? It ends up being a fairly complicated calculus which is why I said it's oftentimes as much art as it is science. And it's an area where I advise folks that if you're engaging in certain types of online publishing activities and especially if you're doing investigative journalism that in the reason why this project that started at Harvard was about trying to get folks the legal help they need to find we have a bunch of pre-publication lawyers around the country who wanna work for small independent journalism organizations that are doing good journalism and help them to reduce their legal risks. And so we have pre-public lawyers that can do that work for free, depending on the size of the organization. And also I think it behooves everyone to be familiar with liable law to understand where the red flags are. It's a great organization out of the Pointer Institute for Media Studies down in St. Petersburg, Florida that runs News University. It's a suite of free self-directed training modules that cover everything from how to write a lead in a news story through to defamation, copyright and privacy. And I'm doing a module for them that's gonna be coming out in December around news gathering liability, how you can avoid getting in trouble when you're actually going out and using recording devices, doing interviews, those kinds of things. So there's a lot of tools and educational materials out there to educate yourself. Because in the end, this is the best tool you have is your brain and the more you can pack in there the better off you're gonna be. Just a quick aside, I was an editor at The Nation magazine for many years and it was actually often very, a lot of fun to go to bat against the pre-publication lawyer that we use there. I always thought that this was for lawyers who were really frustrated editors because you get to rewrite the story. Well, if you just change the word from, you know, just change this word and change that word, we can defend it. The ballet between the editor and the lawyers. So let's go to another question. We saw somebody back there with, yeah, sorry, I'll get to you. You're standing, you wait. Well, I was just gonna, I'm Jim Paradian with Comparative Media Studies. I was just going to ask questions. Somebody referred to WikiLeaks and I'm sure that's a huge elephant someplace and nobody really wants to get too far into it. But I'm wondering about the people who are actually using the data from WikiLeaks bloggers, people like that and the impact of that on them. And also what you foresee as the impact in legislation, things of that sort, that events like this might have. It's an excellent question. I'm happy to take it, but Daniel, you wanna take Chris Crack and then I'll go after him. So subsequent users, downstream users of the WikiLeaks data and we'll use the Iraq and Afghanistan data set as an example. Generally speaking, the First Amendment would not permit liability for the republication of that information. There are Supreme Court cases that have said that in the context of intercepted cell phone conversations in Florida that resulted in a case that went all the way to the Supreme Court called Bart Niki, where the court said you could not hold, these were actual journalism organizations, but you can't hold the subsequent publisher who didn't have a role in the initial wrongful conduct, they didn't do the recording, someone else did provide it to them, they simply published it. The Pentagon Papers is a famous case that Daniel Ellsberg turned those papers over to the New York Times and the Washington Post and he violated his obligations to the government in keeping that information secret. They then published it and the court said you cannot enjoin them from publishing that information. They did not, they were not the ones who breached. So as you move further away from the individual who actually engaged in the improper conduct, the ability to impose legal liability on subsequent publishers diminishes dramatically. I started by saying downstream publishers from WikiLeaks because it's not entirely clear what WikiLeaks' role was in the initial disclosure of that information. We don't know. We don't know how they got the information in the first place and so it would be premature to say whether they may face liability. There is a espionage act that there's been some debate among lawyers as to whether or not that would criminalize, that would potentially criminalize an entity like WikiLeaks, it's very, the language is quite broad and it probably would fall, it probably would face potential liability under the espionage act. The question would then be whether the First Amendment, if a case were brought in the US, whether the First Amendment would provide any protections along the lines of what I said with the Bartnicki case and others. So we don't know. So far the government hasn't gone after them for that and I think we may see that case come. So similar, but not the same. There are a series of very weak whistleblower laws that are currently in effect on the federal level. The practical impact of them is that you're going to lose your job, you're probably not going to get compensation, no good deed will be unpunished, which is unfortunate. But that's sort of the way it is and the project and government oversight has been working hard to get a stronger whistleblower protections. Now it doesn't quite fit within the WikiLeaks model that we're talking about, nor would it fit with Dan Ellsberg, but it's the same kind of thing that's very difficult for people to come out and share the kinds of information that would be useful. And Congress's reaction to the WikiLeaks thing and the transparency community's reaction has been one of a bit horror, actually. All the transparency, or almost all the transparency organizations that I'm aware of say that this hurts their ability to advocate for sensible rules around when this kind of information can be made publicly available and it hurts arguments about declassifying and otherwise making available government information, particularly trying to push on the DOD, even when it's clear that there's a lot of information that's either being withheld or being cast in a light that doesn't necessarily affect the reality of what's going on. So it makes the political climate a lot more difficult to do these kinds of things. Irresponsible journalism is going to need to be protected, but it also needs to be condemned when it's done in this kind of way. And that's about as far as I can go. So I gotta add a comment because I actually disagree. You know, leaks happen every day in Washington. Secret information is just, it's out there all the time. It's authorized leaks straight from the top. When they do it, it's okay. No one's prosecuted. It's just the currency of information there. And then there are just a handful of cases. There've only been, I think, four or five leakers of government information who have ever been prosecuted. And the Obama administration is, I think, currently responsible for two or three of those prosecutions. They are cracking down harder on leaking of government information than any previous administration. Go figure. Now that may be because they are trying to send a signal to would-be leakers to WikiLeaks. WikiLeaks is a transnational organization that is not subject to US law. It's true that anyone associated with them is probably not gonna visit the United States again. We were gonna have Julian Assange and Daniel Ellsberg meet face-to-face at the conference I run in New York, Personal Democracy Forum. And at the last minute, Assange said, I can't come. I've been advised that it wouldn't be safe for me to try and go to the United, and he had just been to the United States like three months earlier. So there's something funky going on around this kind of stuff. I'm much more of a free speech absolutist here than Daniel, it's okay to disagree, though. But given how much leaking is just de facto done and the laws against it are pretty vague with the exception of the Espionage Act and then there's a feature of the communications, some communication secrecy act that pertains to very specific types of signal intelligence that you can't reveal that came up in a case where we had a submarine that was picking up information off some cable off the coast of Russia or something. In any event, we're getting right into the weeds now. Yeah, go ahead, Dan. So one thing with leaking information, it's very helpful to be clever about who you leak to and how you get that information out. So for example, if you give it to Congress and there are rules against doing that kind of thing. Now Congress, of course, has the right to access classified information. They have the right to do all these kinds of things. Right, they rarely exercise. Right, that they have nonetheless. But if you go to them anyway, oftentimes they can shield you under a separate vision of the Constitution, the Speech and Debate Clause, where they can go, this is what they're doing with Dan Ellsberg, where Senator Gravel started reading the Pentagon Papers into the record and he cheered some random committee at the time, it was like environment or something. But it didn't matter. He alternately read it into the record and broke down crying into this for like six or eight hours. That is a way of trying to protect yourself and get this information out also. You can talk to the IG as a way of trying, when the IGs are required to report in certain ways, you can use that as a way of getting the information out. Unfortunately, for most people, these options aren't really available to them or can't be assailed, can't be made available. So there are ways to do it, but there's not enough and it's not protected in ways that are appropriately useful. This is where we get back to the reporter's shield law and things like that. Okay, you've been patient. First of all, thanks for doing this. I think this is great work, obviously. I'm Joe Spur, I just this week was hired by WBUR to direct a project called Order in the Court 2.0. And it's all of this happening right now. We're basically charged with finding the line between free speech rights and the right to a fair trial. We basically have been given full access and full permission from a court in Quincy to modernize their court, stream live, blog, citizen journalism, whatever. So it's incredibly exciting, but it's also, I feel compelled to ask in the current legal environment, what should we be careful of? It seems like a little bit of a minefield and the hope is to find that proper line between free speech rights and free trial rights. And if we do it right, we can create a model for other courts around the country who wanna do that. And we should, but yeah, just on the same subject of experimentation and deal-making that David had mentioned, I thought it was relevant to mention. Great, that's a great question, Joe, and say hi to John for me. I will. This is a fabulous experiment, and I probably should have mentioned it before because generally speaking, courts are, as I mentioned earlier, they're presumed to be open to the public, but in fact, very few people actually go to a courthouse and ever see a trial, and yet the courts could let cameras in, and they don't, and so that sort of happens out there and we don't know about it, and actually when you talk to a lot of judges, they want the public to know more of what they're doing because they're a really essential institution in our society, but you hit on, I think, the real pressure point in this, and that is the public's, the right of access versus the right to a fair trial, and judges are trying to balance that forever. We deal with a lot of folks who have been, for example, excluded from courtrooms for live blogging or tweeting from court, and it's just a matter of explaining to the judge what the technology really does and that it's the same as they, old days they would walk out during a break and on the phone, call up their editor, read the story over, and it would run. And in fact, a lot of those organizations still do that and then it goes up on their website. The judge needs to instruct the jurors to not read the information. Judges have a lot of power, including all the way to sequestration, where they can have the jurors stay in a hotel, local to the courthouse, not get any media at all, control their meals, the whole deal. That's pretty extreme, but there's lots of instructions and things that can be used to balance that. I think the bigger point is that as we begin to look at how these technologies can facilitate access into courtrooms, that we do so in a way that doesn't impact the way the courtrooms function themselves. And one of the big effects, I'd say the most negative effect to, I'm interested if you two agree with me, that slowed down cameras in the courtroom was the O.J. Simpson trial, which a lot of people believe created grandstanding and other activities that would not have happened if there weren't cameras in the courtroom, and that really I think was a setback. So it's a way of doing it in a way that respects the process. I know one of the things you guys are thinking about is just the raw data of what goes on in the court, the dockets, the cases that are gonna be heard, make those available online so that if you have an interest in the case, or it's your neighbor or whatever, you can go. That seems to me to be the most logical way to implement this, have very little effect on the courtroom behavior itself. But as you get to actually streaming live the court activities themselves, to have that be done in a conversation with the lawyers, with the judge, with the court's personnel, in a way that attempts to make the technology as unobtrusive as possible. Yeah, and we have had those conversations and we plan to continue definitely doing that. But it'll be definitely interesting moving forward, especially if we set something up to transcribe what's actually happening. So if your name is in there and someone Googles your name, it's gonna pop right up and that's a completely new world. Yep. So there have been a number of attempts to deal with this, both on the state and on the federal level. On the federal level there has been for, actually with state level in New Jersey, where they made the entire corpus of local court decisions available online. But there are problems when you have instances of stalking, for example, where you don't wanna have a person who is identified where they happen to live or something along those lines. And that kind of information will get pulled out from being online. If you look at federal records, there's PACER, which is a repository of orders and opinions and things along those lines that's nominally publicly available. And there's been efforts to make that available at no cost. But one of the consequences of that effort is that courts do a very poor job of redacting personal information. They don't redact social security numbers the way that it's supposed to. They don't redact information about minor children, things like that, and the way that they're supposed to. And a person who's been dealing with this a lot is Carl Malmood in Stephen Schultzsee, who are going through and building ways of searching out these particular pieces of information and yanking them out of court documents that the courts should have taken out in the first place. And then you also see, for example, with the Supreme Court, there's ongoing balancing questions of when do you make audio from oral arguments available? For a long time it's been that you have to go to the National Archives and get them at the end of the term. Now the court is making them available at the end of each week, but of course, by making it available at the end of the week, it doesn't fit into the news cycle when people would actually want to learn about what's going on. So there's all sorts of very interesting balancing questions about these kinds of things. I mean, would you want to hear Vladiar online? That seems like that's something that you probably would not want to do because of the personal questions that are involved for the jurors. So there's a whole bunch of very interesting questions. So I'm looking forward to watching what you're doing. Thank you. Okay, we have time for a few more questions, I think. Yeah, go ahead. David Crossman, retired web developer. Beyond local transit information, are there programming interfaces to other public data that you know of or pushes for the same? I'm gonna take that one. So there's a project called Open 311, and I mean, basically what's starting to happen is a couple of cities, notably Washington, D.C. and San Francisco, are at the forefront of this movement to open municipal data in structured form. 311 being the sort of complaint systems that they now have for taking in public questions and complaints and then processing them. And the goal is to get the information out in a common structured format. So what you wanna do is just look up Open 311 and go to the Wiki page, and you will see a great deal of already compiled lists of databases. Open 311 is spawning another project called the Civic Commons Project, and the idea there is to really build out a stack for developers so that if you're gonna build a mobile app for bus, when is my bus coming, you don't have to design a new one for each city that they'll all be working off similarly-released structured data. And it's very exciting. I mean, this is a movement that's spreading rapidly around the world. And it's one of those, I like to call this we-government, it's not e-government, right? E-government being the way the government shares information or maybe makes it easy for you to file your taxes or... We-government is people using public data and generating their own data and creating services on top of it that have a quasi-governmental role. And in some cases, you have the city playing, city officials are playing along with developers because they're beginning to learn that this is a way to get value for free or at low cost. Just for today of an iPhone app called Tree Search which uses New York City public information. Yeah, there's the park services. I think they've mapped every tree. There's one called Trees Near Me or something like that. Yeah, yeah, yeah, yeah. Yeah, no, it's a very exciting time. If you're playing in this space of sort of hacking the city to play with this kind of public data, it's actually, I mean, there are different levels of government and it seems that the city is the one that people feel they can reach out and touch and manipulate in a more real way than say your federal government or you're the state capital. This is I think that if we want to really impact government transparency is to think along the lines of the way Mika just described it. That the traditional way that access to government information has worked is that the onus is on the person who wants the information to request it from the government and the government decides whether to make it available and under the prior administration, the Attorney General sent a directive out to all federal agencies and said your presumption should be not to disclose if you can find any reason not to disclose, hold the information and don't make it available. One of the first things President Obama did was issue a directive that suggests the opposite of that but there's an institution, there's a culture within government and it exists from the local level all the way up that really is in that mindset. What we need to do is shift the paradigm which is the default should be the government make data available. It should be all government information to be made available and there should be categories of information that are not made available. Obviously not everything should be made available but we should start with that default and slowly I think we would change the culture but cities are realizing that it's a lot nicer to live in the place if you share this information and let people build on top of it and do great things. I mean it really has a quality of life impact and cities and municipalities are starting to realize that but I think it's a cultural shift as much as anything else and I would love to see in Daniel's group, Sunlight Foundation does so much great work in this area that they're pushing to make that the default but I think if we can accomplish that then we'll really have effectuated significant change. Or comments. Yeah, again, over here. Thank you. On some sensitive topics that have explosive growth now and I'm talking about our ability to have clean water, clean air. Only occasionally will you see how many towns not only in this nation but even in this state that have made a sea change in the last 10 years. I used to work for the city planning department in a city nearby and also was the recording secretary so I heard a lot of this, a lot of stuff is not written down, a lot of stuff is discussion and deals and arrangements and a lot of that works to come to come compromise but when you're talking about real essentials of life like quality of water and not just better quality of water but non-toxic. Now Boston had a recent temporary problem a few months ago and it was solved in a respect to your account was lowered rather quickly. At least six other towns have had that problem and it is even in rich towns like Weston and of course that was very well publicized with the big 10 foot circle connecting link busted and then they were able to technically fix it within a number of days, weeks but what I'm talking about is what you're saying now is the availability of that information to the citizenry while those towns are thinking about it there's pregnant women, there's infants, there's a lot of other people. How can we balance and include some of these current things that these citizenry needs to know about for their health and also help influence their decision-making process on maybe we should really double think about this now over development that's happening. The wetlands acts and stuff are being cremated. Development's happening in the last five to six years to a huge extent and it's a direct, the people that have been protecting it they know it's not just about saving turtles they know it's about the quality of the actual air for humans and stuff too and water. So let me address at least part of that and this goes to there was a recent Pew study which talks about how people get information and it talks about how do you reach more people where they live? How do you get their attention? It used to be you go through the local news you go through the local TV news or newspapers and things like that and many city governments are now not surprising to people in this room are going online and it's not just pull, it's push. So it's, let me give you a good example. I follow the city of Alexandria, which is where I live. So when there is a water main break in town like there was last week, I know about it. When there's a farmer's market in town, I know about it. When I wanna communicate. Is it through Twitter? This is through Facebook actually. It's through Facebook but you can do the same thing through Twitter, you can do the same thing through a number of other sites. You also see every block doing things like that. There are ways that you can report potholes if you take out your phone and you're writing about this. C-click fix. C-click fix in an excellent op-ed in the Wall Street Journal. Was that right? Yeah. So there are those kinds of ways that people are using these kinds of media to figure out what's going on in the government to communicate with them. One sort of very interesting model that we've seen actually comes out of the UK and involves their equivalent of FOIA where there is a website called What Do They Know? And they act as an intermediary between people who have the equivalent of FOIA requests in the government. And what they do is they look at the FOIA request, they say is this something that has been asked before or is it not? If it's something that is new, they figure out the appropriate agency within the government, they forward it onto them, they get the response back and they give it to the citizen. They also post the response online so that when other people have the same question, they can find answers that, so it decreases the burden on government, it puts more information available online. It's an incredibly useful kind of service where sort of third parties are acting as an intermediary. Now there are other instances where this kind of behavior either can be mediated through third parties or where the government itself can sort of step into this role of trying to help, basically acting as a concierge, acting as a way of directing information to the right kind of place and making it available to people in a useful kind of way. Yeah, one thing people need to know about, since again, we're at MIT, so I'm assuming the geek level is a bit higher than for a normal audience. The reason why what do they know works is that you can file requests for a freedom of information request electronically and get back and answer electronically. And so what, and this is all done by an organization called My Society, which is probably the world's premier sort of civic hackers. I mean, they were certainly inspirations for us when we were setting up sunlight. And so if somebody emails, posts their question in the interface that what do they know has built, the question is then sent to the relevant government agency, but first the email address that it comes from, the site generates a special email address so that when the response comes back, it comes back to that address and can be turned into a URL, okay? So that there is no person in the room converting the document, it's done already. The answer is there as a web document, which makes it searchable. We don't have the same capability at the federal level because we don't have the ability to file a FOIA request electronically. I don't know what the state or the local laws are and it seems to me that there's plenty of room here for variation and experimentation and there may be some states and cities that wanna get ahead of the curve and say sure, yeah, you can file electronically, we'll answer electronically and then it's a simple matter of copying the code from what do you know, which I'm sure is open source. Yeah, freedom of information act request. I mean, that's basically under the law. You have, there is all kinds of public documents that you can ask for and get, but you have to make the request. The point of making these requests social and searchable is that over time that information should be out in public view and not for each person to have to repeat. We've, sunlight has also tried to fund some work around making documents that have been made available through FOIA requests at the federal level. There's a project called Open FOIA, which I think is done by crew, is that correct? And the theory there is this is an organization that has sued the White House a number of times and other government agencies and gotten huge document dumps and they don't have the ability to sift every document. So the notion there is it's a repository where people, public interest groups in particular that get these dumps can post the raw documents and then anybody can go help filter and tag them. So if you want to go through some, I'm trying to remember what some of their most famous cases, they were mostly suing the Bush administration for information around Dick Cheney's energy task force for example. So there's a lot of raw, siftable information sitting at Open FOIA. The truth is, we're coming to the close of our conversation. We really should talk about what, and I want to pose this question, but it's also a question for all of us. We're kind of sitting on top of this Cambrian explosion of information, of participation and it feels to me like our systems for filtering are way behind just the raw flow. It's almost like that the stuff spewing up from the bottom of the gulf is that's the information space that we're in right now. And do you agree? Yeah, let's put a cap on it. That's what the government is working on. Well, maybe the government classification is certainly a way, but I think the larger issue is that social media is also raw information flow. I won't call it sewage or spill, but I think our tools for filtering are nowhere close to what we need as of yet. I actually wanted to propose a mash-up just kind of as a thought, it ties right into this. I'm looking at tech president, we still don't know how to vote is the headline and it talks about people don't know what they're voting for, how, why, okay. Meanwhile, you have what do they know? And I'm wondering, has anybody thought about a real-time game of accountability, live accountability? Imagine a Wikipedia that's built around a live debate between two politicians and as the debate is happening, people in real time are resourcing, linking, and a score pops up, like VH1 pop-ups, you remember that pop-up videos? So, because I think it has to be fast. It has to be as fast as the spew. It's a fantastic idea and we built it. Part of it. Part of it anyway, part of it. There's a lot more, it's called Sunlight Live. And we've covered a couple of events. We just covered the election coverage, you know, Tuesday night. We did the president's discussion with Republicans and Democrats around. The healthcare bill. The healthcare bill as well, the six or eight hours of that. And what it was is we took a feed from C-SPAN. So we had a little box of what's going on. Then we had contextual information all around it. So when somebody would come and speak, we would put up the information about who is their donor? Who have they voted for? We have, I participate as one of the live commenters. So I would help explain what was going on along with a number of my colleagues. It's time and reporting intensive to get all this information and data together. But we've now done this a couple of times and it is incredibly helpful. It's like C-SPAN on steroids. You know, it's all the context that you could ever hope for and more. You know, they mention a bill, well, there's a link to the bill. They mention a report, here's the link to the report. Here's an explanation of what they're saying. Flag lies. Say again. Do you flag lies? Say no, this is a lie. Do we flag lies? If it lies? Yes. Did you do a fact check? Look, you're watching a conversation and some Tea Party member says the First Amendment protects churches. And then a big red X comes up and a person goes off. So what we would do is we would link to primary sources so that people could evaluate the information for themselves. If there were things that were obviously incorrect, we would say here's another place that you can look or here's, you know, other points of view. We didn't wanna be trying to fact check all of that because it would be impossible to do that, particularly in that environment. But we tried to make it so that people can make decisions for themselves about what they chose to believe and what they didn't believe. Well, actually, so Sunlight Live is a pretty clunky mashup of various data streams. So it's dependent on a video feed. And if you don't have the video feed, it's a little hard to gather the audience. But, you know, the theory is that there are these live events that do naturally attract people. And then we used a Cover It Live tool, which is a live blogging tool that people can comment in, in addition. And we also had preloaded part of the page where we could swap in things like the campaign contributions that each member had gotten and so on. We have recently gotten funding from the Knight Foundation to basically rebuild the whole Sunlight Live platform from scratch and open source it so that it could be used by other entities, journalistic, or whatever. Or universities around the world. And Mark, I would say that if Jimmy Wales was sitting here, he would tell you that often the Wikipedia page on a breaking news event is the most authoritative page to go to and that lots of people will add information and branch off in different directions. So it's already happening to a certain degree. It's not that wild an idea that you just threw out there, but I think it's great. Maybe you could see instead of the CNN tracking of the people turning their dials. Well, I think the media system is, I mean, the interesting thing that I'm seeing happen is that due to competitive pressures, I mean, lots of media is now trying to show off their technological savvy. Some of it is kind of silly, you know, holograms and the like on CNN. But they are feeling some competitive pressure to be more interactive, to fact check to some degree. So there's room here to push experiments and then hopefully get some copycat behavior. I think your point, Mika, though, and these tools are starting to get us there is that data leads to information, information leads to knowledge, knowledge leads to wisdom. And we're sort of at this stage, probably between data and information, maybe inching towards information to knowledge, that as we start to use these, and I think crowdsourcing is one of the ways. I mean, we're all of us smarter than any one of us and we can break up these tasks, these time consuming tasks and share them around. We can actually benefit from the embedded knowledge in our communities. And we can do it not just within the US community, we can start to look outside the US for other legal approaches, for other approaches to problem solving, and we can bring that information together in a way that actually moves us from a glut of data to real knowledge and then hopefully to wisdom where we can make better decisions as a society and we're moving in that direction. For me, I'm optimistic that we're starting to see this kind of thing and I wasn't aware of sunlight live, but I mean, this is a pretty rudimentary but powerful idea that you can only see improving year after year. And I think this is part of the answer to the question that you just posed. There is so much information out there. How do you filter it? How do you deal with it? And to start figuring out what do you trust? Who is giving you the things that would lead you to trust it? Are they linking to primary sources? Is it gathered from all around the world? Can you figure out how the different mechanisms and pieces move? We're not there. I mean, right now, we're all drowning in information. We all probably have internet phones in our pockets, connected 24-7, all that kind of stuff. But it's starting to get to the point where you figure out ways through the mounds of information, as it's going from information to up to knowledge, up to wisdom. It is drawing the wisdom of crowds. It is trying to figure out how do you know what you should know and what it is that you should know about what you're learning, so. Well, I couldn't actually, both of you have just made great concluding statements, so unless you wanna add to either of them, I know we're just about out of time, so I'm gonna let our thoughts settle on those optimistic conclusions, which I actually share. And I do think we are living through confusing, but ultimately exciting times, and I am optimistic that we can navigate our way through the garden of the ocean of minefields that we've, and find value as we make our way. So thank you, you really illuminated a lot tonight. Thanks for this audience. And we'll hang around and we'll keep talking if people wanna stay.