Sunday, May 29, 2011

The Offensive Internet edited by Saul Levmore and Martha C Nussbaum ? review

A timely study from the US looks at the questions arising from privacy and a lawless internet

Once upon a more hopeful time, technology provided a suddenly empowering means of communication which united friends, families and communities of scholars across the world, blew away clouds of secrecy, toppled autocratic governments (and many other good things). The internet was free, and offered freedom itself; a wonderful tool. And then the law ? or, more accurately, lawyers ? began to try to catch up.

Enter a formidable core team of experts from the Chicago University law school, with guest players from Harvard, Columbia, Washington, Texas and Yale, all anxious to examine whether too much freedom damages psyches (as well as legal fee systems). It's a fascinating task. We know that spreading paedophilia on the net is like shouting "Fire!" in a crowded theatre. Why shouldn't we be equally repulsed when false rumour spreads across Generation Google and blights an innocent life; when the "gender-objectification" of women (and their "huge fake titties") is dirty bathwater on the worldwide web; when misogyny and anonymity are the digital dishes of every day; when privacy itself lies in pawn to the click of a button?

Professor Brian Leiter (one voice from Chicago) wants the boundaries drawn much tighter. "Is there really an amazing diversity of valuable speech around (these) cyber-cesspools that we should give them safe harbours? We do not protect safe harbours in the traditional media for 'cesspool speech': why is cyberspace different?"

Thus you can feel legal mission creep operating, much as usual. Discover a new problem then discover a legal way of addressing it. Read Professor Nussbaum on the moment "autonomy violation" in women becomes "autonomy denial", which infantilises women and infects internet porn. But these are American professors and research fellows writing for an essentially American audience. That means their common obsession is the existence and meaning of the First Amendment, and whether it covers "low value news" as well as the good Watergate-style stuff, a spot of extramarital rough and tumble as well as the Pentagon Papers. If it does, then many of these zealous efforts to curb net opportunism will be doomed to eventual failure at some umpteenth court of appeal hearing ? impossibility looming.

Professor Geoffrey R Stone, editor of the Supreme Court Review and one of the weightiest voices in this collection, adds now widely quoted pragmatism to such basic doubts. Of course there's a strong "strain of nasty" spreading across cyberspace. Of course you can draw modern parallels with Warren and Brandeis's famous, and eternally evoked, law review critique of 1890 newspapers ("The press is overstepping in every direction the obvious bounds of propriety and decency. Gossip? has become a trade"). But where, in a world of social networks and rampant tweets, can real lines be drawn?

His hugely influential conclusion deserves to be there at the top of the evidence bundle as our parliament's new Commons and Lords committee meets to find something sustainable in a world where even the prime minister thinks current privacy defences unsustainable. "Just as the law can no longer effectively deal with obscenity because of social and technological change, so too can it no longer deal with non-newsworthy invasions of privacy." The First Amendment plus technical change mean that, "for all practical purposes", the defences of privacy "have been gobbled up completely. To argue otherwise is simply to tilt at windmills".

We may seem a world away from mystery footballers, superinjunctions, Max Mosley and constant tweeting here: but, in fact, that isn't so. Geoffrey Stone sees the only way to protect privacy today can be at source ? if individuals "who truly care about it? act carefully and with discretion". No romps with gabby Wbags, no drunken nights on the town, no starring roles in celebrity magazines. And here's where the circle of impossibility finally snaps shut.

The internet may be "offensive", and in some instances so repellent that international pressures can operate. But privacy, with its attendant injunctions, lacks any common definition that works in a global digital context, as this remarkably useful book ? detailed, thoughtful debate at a level we haven't begun to approach yet in this country ? irresistibly shows. Judge David Eady, sitting in his Strand courtroom, can't change the First Amendment. What he rules, as we now see, any twittering renegade in Baltimore or Boston can flout with impunity ? and even the massed ranks of American academia can't change that. Privacy in one country has become as duff an international concept as libel rituals supervised in the same court by the same Judge Eady.


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Source: http://www.guardian.co.uk/books/2011/may/29/offensive-internet-review-privacy-law

Thierry Henry Cheryl Cole Simon Cowell David Beckham

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