A Warning to Americans From Across the Pond: Don’t Take Your Free Speech Rights for Granted

For the past decade, freedom of speech has been at the forefront of America's culture war, and it should not be controversial to say that both sides are at least partly to blame for this.

Many on the left have exploited their expanding cultural hegemony to suppress dissenting speech in universities, religious institutions, and the creative industries, while some on the right have attempted to suppress “obscenity,” punish the speech of their ideological enemies, and micromanage classroom instruction.

To those on all sides who think of America’s proud free speech tradition as a political football, I have a simple message: heed Britain’s example.

Last month, a woman was arrested in the UK for refusing to cooperate with a Police investigation into her activities near an abortion clinic. What stimulated this investigation? Was she blocking access to the clinic? Harassing women seeking an abortion? No, she was silently praying.

The arrest of Isabel Vaughan-Spruce is just the latest in a tapestry of alarming censorship exhibits. Since the passage of the Communications Act in 2003, it has become the norm to see reports of people being jailed for ‘offensive’ private text messages; during the mourning period for Queen Elizabeth, several peaceful anti-monarchy protesters were detained or arrested; and in a recent statement, the Crown Prosecution Service argued sections of The Bible “are simply no longer appropriate in modern society and … would be deemed offensive if stated in public.”

The reaction of Britain’s governing elite has not been to correct this sorry state of affairs, but to double down on Parliamentary efforts to curb free expression. New legislation called The Public Order Bill, if passed, will have a chilling effect on our right to protest; the government’s proposed Online Safety Bill would fatally undermine encryption, while forcing tech companies to censor speech “on an industrial scale”; and some MPs have recently taken it upon themselves to sign a letter condemning an offensive op-ed about Meghan Markle.

Thankfully, the American Constitution is clear that decisions about the content of speech are not in the purview of legislators, but individuals. Although post-New Deal Supreme Court jurisprudence leaves much to be desired, it is to the judiciary’s credit that it has generally upheld First Amendment provisions stringently.

While a strong system of constitutional protections is a vital prerequisite to upholding individual freedom, it is not a silver bullet. The key threat to free speech in the UK comes from voters’ unwillingness to defend the right at the ballot box.

On free speech, most Brits are split into two groups. The first takes a Helen Lovejoy-esque approach to speech, with “Won’t somebody think of the children?” being an essential rallying cry for their campaign to encourage more online censorship. This group tends to endorse the view that causing offence or panic trumps the right to free expression, which in turn underpins their desire for other restrictions like anti-hate speech and anti-misinformation laws.

The second group’s approach is akin to appeasement, condemning the latest encroachment on free speech (particularly when it affects them or their in-group) and proclaiming censorship should not go one step further. They rarely, however, make the principled case for free speech or advocate the repeal of all speech-suppressing laws.

The first group is an active threat to free speech, while the second lacks the ideological commitment to fight back against the tide of censorship engulfing British law.

The task ahead for those of us trying to restore free speech is titanic: first, we have to engineer a colossal change in the culture around free speech, such that voters will no longer tolerate infringements on their freedom by MPs. If we can accomplish this, we must then repeal a gargantuan body of speech-suppressing legislation. Only then would it be possible to implement institutional protections akin to the First Amendment, which would shield freedom of expression from future Parliamentary interference.

Those willing to take on this task look to America as the shining city on the hill—a haven of free expression in a world becoming increasingly hostile to it. So much of the work we must do in the UK is already done in the US: you have a proud revolutionary heritage which promotes individual expression, characters who stand proudly as individuals against the mob are core to so much of your history and mythology, and your constitutional guarantee of free speech has largely withstood the challenges thrown its way.

This has not, however, always been true. During World War I, Americans were whipped into a patriotic fervor which saw dissent as a vice, not a virtue. As expected, Congress was not immune to that fervor, passing the Espionage Act of 1917, which restricted anti-war speech. Tragically, the Supreme Court also refused to stop liberties being undermined, upholding Congressional censorship in cases like Debs v. United States—which approved the imprisonment of socialist presidential candidate Eugene Debs for speaking against the war—and Schenck v. United States—which upheld the criminalization of speech urging people to ignore the draft and originated the misguided idea that falsely shouting ‘Fire!’ in a crowded theater is not legally protected speech.

As America’s past and Britain’s present show, you cannot always rely on precedent and institutions to protect free speech. In 1944, Judge Learned Hand delivered a speech titled “The Spirit of Liberty.” While I believe the vision of liberty he articulated in the speech was flawed, he delivered an important insight when he said:

“Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it; no constitution, no law, no court can even do much to help it. While it lies there, it needs no constitution, no law, no court to save it.”

The future of free speech lies in the heart of every American, in every university lecture theater, in every protest, in every vote, in every speech, and in every debate. Nurture it and selfishly guard it, because if politicians sense that your willingness to protect it has diminished, everything from your right to speak out against government policy to your right to silently pray outside an abortion clinic may, before you even realize it, be eroded.

Freedom of speech is functionally extinct in Britain. I urge all Americans to learn the lessons from our experience.

Harrison Griffiths

Harrison Griffiths is Communications Officer at the Institute of Economic Affairs, a free-market think tank in London.

This article was originally published on FEE.org. Read the original article.

A Warning to Americans From Across the Pond: Don’t Take Your Free Speech Rights for Granted

The Opponents of Free Speech Are Gaining Ground. Here’s How We Can Fight Back

Free speech used to be held up as one of the core American institutions. It was enshrined in the First Amendment of the Bill of Rights for a reason: while other countries have also adopted free speech, it is a fundamentally American tradition.

More than that, free speech is essential on its own terms. It is the single best way for humans to make progress. None of us are perfect, and none of us know the full truth. Therefore we all need to engage in the marketplace of ideas in order to find the truth and develop the best path forward.

But free speech has been under attack for decades.

Herbert Marcuse

One of the earliest—and most influential—critics was Herbert Marcuse, a college professor and the father of the New Left. In an essay called Repressive Tolerance published in 1969, Marcuse recommended removing rights (including the right to free speech) from conservatives. Marcuse didn’t see the world in terms of human beings who all have equal worth; he saw the world in terms of power. Those with power should be forcibly silenced (at least, the ones he disagreed with) so that those at the bottom could have more freedom. For Marcuse, if a majority is being repressed, what is needed is “repression and indoctrination” of the powerful so that the weak get the power they deserve.

In recent years, Marcuse-style attacks on free speech have filtered down from academic institutions into the mainstream.

Subjective Rules Focused On Impact (Real Or Claimed)

Ilya Shapiro, adjunct law professor at George Washington University and the University of Mississippi, provides a case study on the new rules around who can speak and what they can say. Early in 2022 Georgetown Law School hired him to teach. When President Biden said he would only nominate a black woman to the Supreme Court, Shapiro expressed dismay at this form of blatant affirmative action. At the voicing of this heterodox view, the sky fell down on him.

Georgetown swiftly placed Shapiro on administrative leave, where he languished for months without knowing whether or not he’d be fired. An administrative investigation into the offending Tweets lasted 122 days.

Georgetown finally reinstated Shapiro, but only on the technicality that he hadn’t officially started at Georgetown at the time he sent his tweets. The Office of Institutional Diversity, Equity and Affirmative Action (IDEAA) said that his comments were “objectively offensive” and that saying something similar in future may be enough to get him fired.

Even more disturbingly, the IDEAA adopted a blatantly subjective standard for deciding whether or not speech by faculty would be punishable. “The University’s anti-harassment policy does not require that a respondent intend to denigrate,” according to the report. “Instead, the Policy requires consideration of the ‘purpose or effect’ of a respondent’s conduct.”

As Shapiro puts it: “That people were offended, or claim to have been, is enough for me to have broken the rules.”

This punishment of heterodox speech isn’t an isolated incident. A 2017 survey by the Cato Institute and YouGov found that over a third of Democratic responders said that a business executive should be fired if they “believe psychological differences explain why there are more male engineers.” A substantial number of respondents thus advocated stripping someone of their job for the crime of saying what many psychologists know to be true.

Walking On Eggshells

The new cultural norms around free speech aren’t just a problem for right-wingers. In an in-depth explainer on cancel culture, Julian explains the scope of the problem:

"Heterodox Academy surveyed 445 academics about the state of free inquiry on campus, asking them, 'Imagine expressing your views about a controversial issue while at work, at a time when faculty, staff, and/or other colleagues were present. To what extent would you worry about the following consequences?'

One of the hypothetical consequences Heterodox Academy listed was, 'my career would be hurt.' How many academics said they would be 'very concerned' or 'extremely concerned' about this consequence? 53.43%.

To put it another way: over half of academics on campus worried that expressing non-orthodox opinions on controversial topics could be dangerous to their careers.

We see the same self-censoring phenomenon among college students. In 2021, College Pulse surveyed 37,000 students at 159 colleges. They found that 80% of students self-censor to at least some degree. 48% of undergraduates reported feeling, 'somewhat uncomfortable' or 'very uncomfortable' expressing their views on a controversial topic in the classroom.

In a panel on free speech and cancel culture, former ACLU president Nadine Strossen said, 'I constantly encounter students who are so fearful of being subjected to the Twitter mob that they are engaging in self-censorship.'"

It’s not just students and professors. In an article titled “America Has A Free Speech Problem,” the New York Times editorial board noted that 55 percent of Americans have held their tongue in the past year because they were concerned about “retaliation or harsh criticism.”

Extremists on both sides of the aisle increasingly wield their power to shame or shun Americans who speak their minds or have the temerity to voice their opinions in public. This problem is most prominent on social media, but is spilling into offline conversations as well. Citizens of a free country should not live in fear that a woke or far-right mob will come for them because they express an idea that isn’t sufficiently in vogue.

Pretending That Speech Is Violence

The very concept of free speech is increasingly associated with violence. When former vice president Mike Pence planned to speak at the University of Virginia, the student newspaper Cavalier Daily published a furious editorial saying that Pence shouldn’t be allowed to speak. Why not? “Speech that threatens the lives of those on Grounds is unjustifiable.” It takes a lot of mental contusions to conclude that letting Pence give his opinion could threaten anyone’s life.

It’s not just students. Psychologist Lisa Feldman Barrett published an op-ed in the New York Times titled, “When is speech violence?”

According to Barrett, “If words can cause stress, and if prolonged stress can cause physical harm, then it seems that speech—at least certain types of speech—can be a form of violence.”

She continued: “That’s why it’s reasonable, scientifically speaking, not to allow a provocateur and hatemonger like Milo Yiannopoulos to speak at your school. He is part of something noxious, a campaign of abuse. There is nothing to be gained from debating him, for debate is not what he is offering.”

The fact that psychologists are lending the veneer of science to the idea that speech is violence should be deeply troubling to every American.

Why Is Free Speech Essential?

When we break down the core institution of free speech, we lose a lot of what made America so successful in the first place. Robust norms of free speech helped people build the emotional and mental resilience to cope with ideas they disagreed with. It helped us build bonds with people who believed different things, because we were able to listen to and understand their position.

Free speech also enabled multiple parties to argue from competing worldviews and find a solution that was better than what any party had formulated going into the discussion.

The silver lining is this: Americans increasingly recognize that free speech is a value whose preservation is essential. The New York Times editorial board notes that “84 percent of adults said it is a, ‘very serious’ or ‘somewhat serious’ problem that some Americans do not speak freely in everyday situations because of fear of retaliation or harsh criticism.”

What Can You Do?

As a strong and integrous person, what can you do to limit the impact of the degradation of free speech on your own life?

First, speak up about what you know to be true—even if no-one else is speaking up, even if there are risks to you. Develop the courage to call a spade a spade. If you see insanity—in your workplace, in politics, in your home—call it out openly and honestly. You’ll sleep better at night. You’ll also become stronger through the act of speaking out. Speaking takes courage, but it also creates courage.

Second, seek out people who disagree with you. Listen to them. Go further; try to be persuaded by them. Skewer your sacred cows and let go of your ideology. Neither one is serving you.

Third, banish forever (if you haven’t yet) the infantile notion that words are violence. This notion is profoundly damaging, because it makes you weak. If mere disagreement can hurt you, after all, then so can everything else in life. So will everything else in your life. Instead, embrace the adage of the Stoics: other people are responsible for their actions, you are responsible for your response. Once you embrace the idea that mere words—whether vicious or merely heterodox—cannot hurt you, you are on the path to emotional strength and groundedness.

Fourth, don’t let yourself become a “tribe of one.” It’s easy, in this environment of chilled speech, to always feel scared to speak up. Find a group of friends who encourage you to speak your truth, and who speak their truth in return to you. Find people who aren’t afraid to share heterodox ideas and to challenge your sacred cows, nor to have their own challenged in return.

Find a group you’d trust to have your back in a firefight, and who will love you and expect you to have theirs in turn.

This article was republished with permission from The Undaunted Man.

Julian Adorney

Julian is a former political op-ed writer and current nonprofit marketer. His work has been featured in FEE, National Review, Playboy, and Lawrence Reed's economics anthology Excuse Me, Professor.

This article was originally published on FEE.org. Read the original article.

The Opponents of Free Speech Are Gaining Ground. Here’s How We Can Fight Back

California’s Bill Restricting Speech Is Authoritarian

California’s Bill Restricting Speech Is Authoritarian







California is one step away from going down the unconstitutional road of government-mandated censorship of Internet speech. The California Senate and State Assembly recently passed S.B. 1424, the “Internet: social media: advisory group” act. This fake news advisory act is now on the desk of Governor Jerry Brown for his signature.

According to Section 3085 of the legislation:

The Attorney General shall, subject to the limitations of subdivision (d), establish an advisory group consisting of at least one member of the Department of Justice, Internet-based social media providers, civil liberties advocates, and First Amendment scholars, to do both of the following:

(a) Study the problem of the spread of false information through Internet-based social media platforms.

(b) Draft a model strategic plan for Internet-based social media platforms to use to mitigate the spread of false information through their platforms.

It’s hard to imagine those voting for the bill were motivated by good intentions. In any case, good intentions are not enough. Is it hard to imagine the results of the law will be censorship of views that politicians disagree with and views critical of politicians?

Most likely, Californians are not concerned about “fact-checking” content like “a mile is 5290 feet” or an appeal to form a flat Earth Facebook group; such content poses no threat to entrenched interests. Instead, “fact-checking” will be deployed against those who express doubt, for example, about climate change, vaccine safety, or “educating” children about gender dysphoria.

In a world where most scientific studies can’t be replicated, a consensus should not be confused with an immutable fact.

If you doubt that censorship is the aim of the bill, consider the even more draconian measures that an earlier version of the bill required. Social media sites would have needed to develop “a plan to mitigate the spread of false information through news stories, the utilization of fact-checkers to verify news stories, providing outreach to social media users, and placing a warning on a news story containing false information.”

The First Amendment makes no provisions for government judging the validity of speech either directly or through mandated “fact-checking.” In legitimate cases of defamation, legal remedies are available, but the bar for a successful lawsuit is high.

Concern Over Fake News is Old News

Concern over “fake news” is not new. Elbridge Gerry, who became the fifth vice president of the United States, despaired at the Constitutional Convention about the impact of “false reports”:

The people do not want virtue, but are the dupes of pretended patriots. In Massachusetts it had been fully confirmed by experience, that they are daily misled into the most baneful measures and opinions, by the false reports circulated by designing men, and which no one on the spot can refute.

There have always been “false reports,” but Thomas Jefferson believed in the wisdom of the public to discern the difference:

It is so difficult to draw a clear line of separation between the abuse and the wholesome use of the press, that as yet we have found it better to trust the public judgment, rather than the magistrate, with the discrimination between truth and falsehood. And hitherto the public judgment has performed that office with wonderful correctness.

What Jefferson observed in his time is no less true today. It is impossible to “fact-check” the limitless amount of Internet speech. It is no more possible to “fact-check” than it is to centrally plan; in either case, the power of reason is not able to deal with the unforeseeable complexity one would encounter. Knowledge, by its nature, is vast and decentralized.

In Conjectures and Refutations, philosopher Karl Popper observed: “There are no ultimate sources of knowledge. Every source, every suggestion, is welcome; and every source, every suggestion, is open to critical examination.”

In contrast, California’s politicians seem to believe only some ideas are welcome—if those ideas have been “fact-checked” by the heavy hand of government-sponsored boards.

Why Authoritarians Always Suppress Speech

In his new discussion paper, “The Mirage of Democratic Socialism,” economist Kristian Niemietz of the Institute of Economic Affairs counts “more than two dozen attempts (not counting the very short-lived ones) to build a socialist society.”

“They all,” Niemietz writes, “led to varying degrees of economic failure.” With that economic failure always came “varying degrees of repression and political authoritarianism," as well as severe limitations on “freedom of choice and personal autonomy in the economic sphere.”

Authoritarians, including so-called “democratic socialists,” must always suppress speech. Why? Human beings have boundless preferences and competing goals. These preferences and goals are sorted out by either socialist planners or impersonal market processes.

As central planning fails, a scapegoat must be found. If only the people were united and working towards the same goals, our plans would succeed, reason the planners. Thus, observes Niemietz, all socialist regimes seek to enforce compliance with their plans:

One of the most persistent features of socialism is the paranoia about imaginary saboteurs, wreckers, hoarders, speculators, traitors, spies and stooges of hostile foreign powers. These phantoms are always accused of ‘undermining’ the economy (although it never quite becomes clear how exactly they do that), which would otherwise work just fine. More generally, the oppressive character of socialist societies was generally linked to the economic requirements of a centrally planned economy. Socialist states did not oppress people for the sake of it. They did so in ways that enforced compliance with the aims of the social planners.

In a future dystopian “democratic socialist” California, the search for “false information” could be weaponized against those arguing for free markets. After Google provides a censored search engine in China, they can no doubt use their new expertise in California to keep up with the latest laws.

Free Speech Keeps Government in Check

The Founders saw the press as an absolute necessity to keep government in check. In 1765, John Adams wrote that the people have “an indisputable, unalienable, indefeasible, divine right” to “knowledge… of the characters and conduct of their rulers.” Adams explained why such knowledge is crucial:

Rulers are no more than attorneys, agents, and trustees for the people; and if the cause, the interest and trust, is insidiously betrayed, or wantonly trifled away, the people have a right to revoke the authority that they themselves have deputed, and to constitute abler and better agents, attorneys, and trustees.

What are the sources of crucial information about our “rulers”?

None of the means of information are more sacred, or have been cherished with more tenderness and care by the settlers of America, than the press. Care has been taken that the art of printing should be encouraged, and that it should be easy and cheap and safe for any person to communicate his thoughts to the public.

What if the news was “speculative” and unproven? No matter. Adams praised newspaper publishers, and to them he wrote:

[W]hatever the tyrants of the earth may say of your paper, [you] have done important service to your country by your readiness and freedom in publishing the speculations of the curious. The stale, impudent insinuations of slander and sedition, with which the gormandizers of power have endeavored to discredit your paper, are so much the more to your honor; for the jaws of power are always opened to devour, and her arm is always stretched out, if possible, to destroy the freedom of thinking, speaking, and writing.

Yet, as president, Adams couldn’t resist the human temptation to silence his critics. In 1798, Adams sang a different tune about the press as he signed the Alien and Seditions Acts, criminalizing the speech of his opponents, including Ben Franklin’s grandson.

Ironically, in the process of criminalizing speech, Adams proved his earlier writings were correct: freedom of the press is always to be zealously guarded.

California is on the verge of going down the slippery slope of placing authoritarian restrictions on speech. Whether Governor Brown signs the bill or not, a mindset—inimical to a free society—is on full display for the rest of America to see and, hopefully, reject.

Source: California's Bill Restricting Speech Is Authoritarian - Foundation for Economic Education

Holding Twitter Responsible for Providing Material Support to Terrorists Would Violate Users’ First Amendment Rights

Holding Twitter Responsible for Providing Material Support to Terrorists Would Violate Users’ First Amendment Rights

A lawsuit claiming that Twitter provides material support to terrorists by providing accounts to users who discus or promote terrorism threatens the First Amendment rights of Internet users and Twitter, EFF told a federal appellate court in a brief filed on Wednesday.

The brief [.pdf] also argues that the lawsuit jeopardizes one of the Internet’s most important laws: 47 U.S.C. § 230, enacted as part of the Communications Decency Act (known simply as “Section 230”).

The case, Fields v. Twitter, seeks to hold Twitter responsible for the deaths of two Americans killed in a 2015 attack in Jordan. The family members argue that by providing accounts to users they describe as posting content advocating for terrorism, Twitter violated a federal law that prohibits individuals and organizations from providing material support to terrorists.

The federal trial court hearing the case dismissed the lawsuit in November 2016, ruling that Section 230 barred the claims and also that the family members had not shown that Twitter caused the attacks at issue in the case. The family members appealed to the U.S. Court of Appeals for the Ninth Circuit.

In the brief, EFF and the Center for Democracy & Technology argue that making Twitter legally responsible for providing accounts to users who discuss or promote terrorism will violate the First Amendment in several respects.

First, it will interfere with Internet users’ First Amendment right to access information on controversial topics or from unpopular speakers.

“Depriving users of their right to receive and gather information discussing terrorism will do far more than simply limit which content is available online­; it will stunt people’s ability to be informed about the world and form opinions,” the brief argues.

the First Amendment does not permit ad hoc judgments regarding the social value of speech to determine whether that speech is protected

Second, it will violate Twitter’s First Amendment rights to publish speech about terrorism because the vast majority of such speech is fully protected. There is no categorical prohibition on speaking about terrorism, the brief argues, because “the First Amendment does not permit ad hoc judgments regarding the social value of speech to determine whether that speech is protected.”

The brief also argues that making Twitter liable for the speech of its users will undermine Section 230’s legal protections for all Internet platforms. That will jeopardize the continued availability of open platforms such as Twitter, Facebook, and YouTube.

“By creating Section 230’s platform immunity, Congress made the intentional policy choice that individuals harmed by speech online will need to seek relief from the speakers themselves, rather than the platforms those speakers used,” the brief argues.

Finally, the brief argues that if online platforms no longer have Section 230’s immunity, platforms will take aggressive action to screen their users, review and censor content, and potentially prohibit anonymous speech.

“Because platforms will be unwilling to take a chance on provocative or unpopular speech, the online marketplace of ideas will be artificially stunted, despite such speech being protected by the First Amendment,” the brief argues.

 30-2_corrected_brief_of_amicus_curiae_eff_and_cdt.pdf

Source: EFF to Court: Holding Twitter Responsible for Providing Material Support to Terrorists Would Violate Users’ First Amendment Rights | Electronic Frontier Foundation

Printer Tracking Dots Back in the News

Printer Tracking Dots Back in the News



Several journalists and experts have recently focused on the fact that a scanned document published by The Intercept contained tiny yellow dots produced by a Xerox DocuColor printer. Those dots allow the document's origin and date of printing to be ascertained, which could have played a role in the arrest of Reality Leigh Winner, accused of leaking the document. EFF has previously researched this tracking technology at some length; our work on it has helped bring it to public attention, including in a somewhat hilarious video.

One of the experts, Rob Graham, used a tool that we created to decode the dots. Whenever someone's liberty is at stake, we are extra careful in our public statements, but we offer the following thoughts on the situation:

•  The affidavit that led to Winner's arrest described how the government identified its suspect. The affidavit did not mention the use of the tracking dots at all, but referred only to other sources of information. It's quite possible that printer dots did not play any role in this investigation at all.
• However the government identified its suspect in this case, it's worth remembering that forensic techniques are very powerful and can often reveal the origins of documents in unexpected ways.
• This tracking technology is pervasive in color laser printers, and is a result of secret agreements between governments (the U.S. is not the only one) and the printer industry, dating back more than a decade. Some printer manufacturers openly acknowledge that such a tracking mechanism exists, but offer few other details. The original motivation given for the tracking technology is investigating counterfeiting of currency, although nothing in the technology limits its use to that purpose. Overall, this secret nonconsensual tracking makes it more difficult to publish any kind of document anonymously, which implicates both privacy and speech.
• Not all printers' tracking information is readily visible. Some of the documents we obtained about this technology showed that there is a subsequent generation of tracking technology, which apparently works by slightly rearranging dots that the printer is expected to print, rather than by adding new dots. Anyone using a color laser printer should assume that it uses some kind of tracking mechanism, whether or not tracking dots are visible in its output.
• This technology is one way that governments secretly pressured industry to change products to undermine privacy and anonymous speech when the law did not require it. This should make us all wonder how else the government is working in secret to undermine privacy and speech.  We should insist that companies be transparent about how government requests have affected the design of the products we use, since those designs can have profound implications.

Source: Printer Tracking Dots Back in the News | Electronic Frontier Foundation

Microsoft sues U.S. government over data requests

Microsoft sues U.S. government over data requests


Microsoft Corp (MSFT.O) has sued the U.S. government for the right to tell its customers when a federal agency is looking at their emails, the latest in a series of clashes over privacy between the technology industry and Washington.

The lawsuit, filed on Thursday in federal court in Seattle, argues that the government is violating the U.S. Constitution by preventing Microsoft from notifying thousands of customers about government requests for their emails and other documents.

The government’s actions contravene the Fourth Amendment, which establishes the right for people and businesses to know if the government searches or seizes their property, the suit argues, and Microsoft’s First Amendment right to free speech.

The Department of Justice is reviewing the filing, spokeswoman Emily Pierce said.

Microsoft’s suit focuses on the storage of data on remote servers, rather than locally on people’s computers, which Microsoft says has provided a new opening for the government to access electronic data.

Using the Electronic Communications Privacy Act (ECPA), the government is increasingly directing investigations at the parties that store data in the so-called cloud, Microsoft says in the lawsuit. The 30-year-old law has long drawn scrutiny from technology companies and privacy advocates who say it was written before the rise of the commercial Internet and is therefore outdated.

“People do not give up their rights when they move their private information from physical storage to the cloud,” Microsoft says in the lawsuit. It adds that the government “has exploited the transition to cloud computing as a means of expanding its power to conduct secret investigations.”

The lawsuit represents the newest front in the battle between technology companies and the U.S. government over how much private businesses should assist government surveillance.

By filing the suit, Microsoft is taking a more prominent role in that battle, dominated by Apple Inc (AAPL.O) in recent months due to the government’s efforts to get the company to write software to unlock an iPhone used by one of the shooters in a December massacre in San Bernardino, California.

Apple, backed by big technology companies including Microsoft, had complained that cooperating would turn businesses into arms of the state.

“Just as Apple was the company in the last case and we stood with Apple, we expect other tech companies to stand with us,” Microsoft’s Chief Legal Officer Brad Smith said in a phone interview after the suit was filed.

One security expert questioned Microsoft’s motivation and timing. Its lawsuit was “one hundred percent motivated by business interests” and timed to capitalize on new interest in customer privacy issues spurred in part by Apple’s dispute, said D.J. Rosenthal, a former White House cyber security official in the Obama administration.

As Microsoft’s Windows and other legacy software products are losing some traction in an increasingly mobile and Internet-centric computing environment, the company’s cloud-based business is taking on more importance. Chief Executive Satya Nadella’s describes Microsoft’s efforts as “mobile first, cloud first.”

Its customers have been asking the company about government surveillance, Smith said, suggesting that the issue could hurt Microsoft’s ability to win or keep cloud customers.

In its complaint, Microsoft says over the past 18 months it has received 5,624 legal orders under the ECPA, of which 2,576 prevented Microsoft from disclosing that the government is seeking customer data through warrants, subpoenas and other requests. Most of the ECPA requests apply to individuals, not companies, and provide no fixed end date to the secrecy provision, Microsoft said.

The Obama Administration’s War on the Press Could Become a Touch More Literal

The Obama Administration’s War on the Press Could Become a Touch More Literal


Now a new Pentagon document, a Law of War Manual, states that journalists can be treated like “unprivileged belligerents,” which is apparently the new term for “unlawful combatants,” which some may recall was the new term for “suspected terrorists.”

According to some media coverage of the manual, military leaders are insisting they’re not declaring that journalists are the enemy. Rather they’re pointing out that journalists just might be the actual enemy, as in terrorists, spies, and propagandists posing as journalists.

The Committee to Protect Journalists, however, is concerned that the vagueness of the manual will give clearance to the military to detain and harass journalists with very little evidence that they’re doing anything but honest reporting…

Feds Tighten Restrictions on 3-D Printed Gun Files Online

Feds Tighten Restrictions on 3-D Printed Gun Files Online


THE NOTION OF a 3-D printable gun has become the perfect flashpoint in a new conflict between digital arms control and free speech. Should Americans be allowed to say and share whatever they want online, even if that “speech” is a blueprint for a gun? The State Department has now answered that question with a resounding “no.”

In the last few days, the State Department has issued two new statements confirming its intention to act as gatekeeper for when Americans can legally publish online data that could allow someone to digitally fabricate a gun. And those statements outline how it plans to restrict those publications as a controlled “foreign export” of munitions.

Earlier this week, the State Department sent a letter to the controversial gun access group Defense Distributed, confirming that it will require the group to get specific permission from the government before publishing its 3-D printable gun files online. That warning comes more than two years after the State Department sent Defense Distributed an initial letter telling it to take its gun files off its website pending a decision about their legality.

And in a separate filing to the federal register last week, the State Department also wrote that it intends to require prior approval for the online publication of any “technical data” that, vaguely defined, would allow for the creation of weapons, an even broader swathe of files. The agency’s statement warns that publishing those weapon files to the Internet, with its global connections, could amount to violating the International Trade in Arms Regulations (ITAR) by exporting controlled weapons data to a foreign country—hardly different, by its definition, from sending missile schematics to Iran.

“Before posting information to the Internet, you should determine whether the information is ‘technical data.’ You should review the [United State Munitions List], and if there is doubt about whether the information is ‘technical data,’ you may request a commodity jurisdiction determination from the Department,” reads the State Department’s filing. “Posting ‘technical data’ to the Internet without a Department or other authorization is a violation of the ITAR even absent specific knowledge that a foreign national will read the ‘technical data.’”

The State Department’s renewed attempt to control the spread of gun files online comes just as the conflict between the control of digital weapons “exports” and free speech is coming to a head: A month ago, Defense Distributed sued the State Department on First Amendment grounds, arguing that its right to free speech is being violated by the State Department’s demand for prior approval of its printable gun file uploads.

“Just because information can be used for some bad purpose doesn’t make it illegal to publish it,” says Matthew Goldstein, an export control lawyer representing Defense Distributed. “This isn’t just a firearms case, even though it deals with firearms. It’s really a free speech case.”

NYT reporter: Obama administration ‘the greatest enemy of press freedom’ in a generation

NYT reporter: Obama administration ‘the greatest enemy of press freedom’ in a generation

Poynter reports that Risen made the remarks while speaking at Sources and Secrets conference — a meeting of journalism , communication and government professionals held in New York City. The foreign policy reporter, who is currently fighting a fierce court battle with the federal government over his protection of a confidential source, warned that press freedom is under serious attack in today’s America.

In a speech kicking off the conference, Risen claimed that the Obama administration wants to “narrow the field of national security reporting” and “create a path for accepted reporting.” Those who stray from that path, he cautioned, “will be punished.”

The result is a “de facto Official Secrets Act,” Risen explained, making the current White House “the greatest enemy of press freedom that we have encountered in at least a generation.” And the media has been “too timid” in pushing back against the onslaught.

US DROPS TO 46TH IN PRESS FREEDOM

US DROPS TO 46TH IN PRESS FREEDOM

The Index, published Feb. 11, shows that America now ranks number 46, below countries like South Africa and France. The Index has been published annually since 2002, but the 2014 ranking for America marks one of the most significant declines ever reported.

According to Christophe Deloire, the Reporters Without Borders Secretary General, the World Freedom Index is based on seven criteria: the level of abuses, the extent of pluralism, media independence, the environment and self-censorship, the legislative framework, transparency and infrastructure.

Investigative journalist James Risen believes the Index rightly shows the drop in American journalists’ freedoms due to crackdowns on reporters and whistleblowers and the efforts of the Obama administration and the National Security Agency to limit the amount of information America has concerning the “War on Terror” and other subjects.

“I think 2013 will go down in history as the worst year for press freedom in the United States modern history,” James Risen said.