May 24, 2006

Chilling Effects site defends online freedom of expression

Author: Bruce Byfield

Chilling Effects is a resource site for online freedom of expression in the United States. Founded by Wendy Seltzer, currently a visiting assistant professor at Brooklyn Law School, the site is supported by the Electronic Frontier Foundation and more than half a dozen law schools, including Harvard, Stanford, and Boalt. The site exists to document attempts to stifle free speech online, and to provide general legal advice for those faced with such attempts. During its five years of operation, Chilling Effects has become one of the major Web resources on its subject.

The site takes its name from a piece of American legal jargon. "'Chilling effects' refers to a doctrine in First Amendment Law," Seltzer explains, which suggests that, when examining laws, courts should look at "not just what speech is clearly prohibited by the law, but what speech may be silenced because people are afraid of violating the law." By extension, a chilling effect is a use of the threat of legal action to suppress free speech.

Seltzer began the site after she noticed that cease and desist orders were being increasingly used as chilling effects to intimidate site owners into removing material. Often, she suspected, these claims were questionable. "The lawyers of big corporations were using this as a tactic of first resort," she says, adding, "It's very easy to send a threatening letter. That very often clears up the problem, and you don't even have to worry about the cost of litigation or taking further action against someone who's just annoying." Seltzer sometimes refers to such letters as "nastygrams."

Such letters often work because of the public's ignorance of the law and the intricacy of the laws surrounding issues about freedom of expression. "The general public, unsurprisingly, doesn't have a lot of knowledge about the intricate details of copyright law or fair use, or when it's fair to use a trademark when criticizing a company, or what kind of speech is defamatory, versus truthful statements and commentary," Seltzer says. "So the biggest purpose of the Chilling Effects Web site is to put more information out there in accessible language -- not dumbed-down but with examples and descriptions that make sense to someone who's not a lawyer -- so that they can know their rights against someone's attempt to claim that something lawful is stepping over the line."

The site's largest resource is a database of cease and desist orders contributed by their recipients. Each of these letters is annotated with links to the site's FAQs on related topics. Recent orders are featured in a column on the front page, and users can search the site for earlier ones. Breaking news on related subjects and resources on other sites are also available from the site.

After the database, probably the most important resource on Chilling Effects is the series of legal primers on common topics connected with freedom of expression. Many of these introductory pieces are written by professors at the law schools associated with the site. Simply reading the list of topics is enough to freeze the heart of civil libertarians: in addition to expected topics, such as the Digital Millennium Copyright Law (DMCA), patents, and the right to anonymity, they include protest, parody and criticism, and fan fiction (amateur works, often written by teenagers, that use published writers' characters and backgrounds; popular subjects include Star Trek and Harry Potter). Just the fact that such legal or innocuous material is being targeted is enough to explain the need for the site -- to say nothing of the frequent mis-targets, such as Warner Brothers' infamous action against a child's book report in the belief that it was illegally distributing a Harry Potter movie. Seltzer sees the humor in such overreactions, but she also believes that these situations are becoming increasingly common.

Some of the reason for the apparent rise in chilling effects, according to Seltzer, is that the application of a few legal aspects such as copyright to online material is sometimes uncertain under American law. "Everything you do online makes copies," she says. "So there's the potential for more copyright infringement."

But the main reason, she believes, is the greater accessibility of online documents. For instance, if you post a site critical of a particular company, "the search engines can find it and someone doing a daily search on the company name is going to come across your criticism page more quickly than they will if you are distributing leaflets in the parking lot of your town's supermarket," Seltzer says. The Chilling Effects site exists to give ordinary people the information they need to fight back -- or, sometimes, to know when they need to back down.

Chilling Effects and legal education

As well as educating the public, Chilling Effects serves as a teaching aid for the law schools that support it. In the classroom, the site serves as a repository of case information. "I taught a privacy class this term at Brooklyn Law School and used the site several times," Seltzer says. "We've got lots of threat letters that celebrities have written to Web sites that like to talk about celebrity sightings or celebrity tapes that have leaked. I've used those examples in my privacy class to get students to think about which of these things are actually protected privacy interests, which ones are newsworthy episodes, and which the celebrity doesn't have privacy rights in, or a right to stop the conversation."

Similarly, annotating submitted letters under the supervisions of professors gives students hands-on experience with the law. For example, Seltzer refers to a claim that the owner of a mailing list archive is infringing Rolex's trademark because the archive includes a spam message for fake Rolexes. As students annotate the letter and link to resources, they can learn that the claim is unlikely to be upheld, because, while trademark law protects against false identification or implied endorsements, nobody is likely to be misled by the spam.

"The student, by making these annotations, is learning about the law and learning about the kinds of letters that are sent," Seltzer says. Even if the student is called upon to handle a similar dispute for a corporate client, she hopes that "they would think about different ways to confront these kinds or problems, rather than starting right off with a silly letter that overstates their case."

Some students also assist users of the site with specific cases. However, Seltzer stresses that, to protect itself, the site itself does not offer advice -- only general information.

Chilling Effect's influence

Asked about the success of the site, Seltzer sounds cautiously satisfied. The site is regularly mentioned in articles about freedom of expression, and references to it have been sighted in newsletters from law firms and correspondence between lawyers and their clients. More importantly, information from Chilling Effects has been cited in law review articles and in court briefs, while the lawyers connected with the site have been involved in such high-profile cases as the RIAA's case against Verizon Communications over a Kazaa file-sharing user.

Some law firms, Seltzer notes, have even used the possibility of having a cease and desist order published on Chilling Effects as a means of discouraging their use. "I think it has a moderating effect," Seltzer says quietly.

Seltzer is especially pleased with Google's use of the site. "One of the biggest categories of letters we're getting right now is takedown notices getting sent to search engines," Seltzer says. "They're getting lots of claims that links in their search engines infringe copyright -- or, more accurately, that the materials linked to infringe copyright." Although the DMCA encourages the removal of links to avoid liability, Google has found a unique way to cooperate while making its users aware of what has happened.

When Google removes a link, its policy is to send the cease and desist letter to Chilling Effects, and to note at the bottom of the search results that links are missing. An example of this policy appears if you search for "kazaalite". "I think it's been quite helpful," Seltzer says. "It's a way for Google to say there's more information that we can't legally show to you, but here at least is the legal claim that's getting it removed."

Despite these examples of Chilling Effect's effectiveness, Seltzer seems bothered by the difficulty in judging the overall effect of the site. "We don't have any way of knowing globally the number of cease and desist orders and whether that's increased or decreased, or whether Chilling Effects is having any impact on that number," she says. "I'd love to see more people contribute the cease and desist letters they've received to us. In particular, I'd love for more ISPs and more larger Web sites to contribute the letters they receive to help us get that broader view of what's being sent to whom and why."

Meanwhile, Seltzer believes that Chillilng Effect's main success lies in "simply being accessible to lots of people and helping people to understand what the law is."

Bruce Byfield is a course designer and instructor, and a computer journalist who writes regularly for NewsForge, Linux.com and IT Manager's Journal.

Category:

  • Legal
Click Here!