Amici Curiae: The Apple Sexting, Nobel Peace Prize, and Hopefully We May Soon Ask and Tell Edition

Apple is Anti-Sexting

After removing porn apps from its App Store early this year, Apple made another move to censor R-rated content – “anti-sexting” technology. This newly patented technology blocks “text-based messages” that contain “objectionable content”, placing control over sending sexually explicit text messages on cell phones. The parental control application scans all incoming and/or outgoing text messages and gives a score on the appropriateness of the texts. If the user’s age or grade level does not meet the criteria, the texts would need to be replaced or automatically deleted.

While this technology aims at reducing “sexting”, it irrevocably overlooks the pressing issue of child pornography (read teenagers voluntarily sending sexually explicit photographs; click here for TheCourt.ca story; here for NYT piece). Also, the ability to filter text messages with “objectionable content” is criticized by all quarters (click here, here, here, and here). Novel acronyms are quickly evolving to become everyday languages, and you can envision how easy it would be to invent words to get around the sensor. As George Stroumboulopoulos wrote, sarcastically, that this technology is more useful for self-control rather than parental control: “Turning this filter on can prevent you from making bad decisions at 2 in the morning after a few too many drinks. Does it come with a Breathalyzer? Because it should.”

Freedom of Expression Could Be Everyone’s Problem

The issue of censorship takes us to the other side of the globe. Liu Xiaobo, the 2010 Nobel Peace Prize Laureate who is serving 11 years in prison, has been advocating for human rights, the rule of law and democracy in China for the past 20 years. His Nobel Prize is well-deserved, since it’s based on continuous advocacy and not mere promises (hint: last year’s Nobel Peace Prize winner).

For the past few decades, it is no doubt that China recognizes its need for a social-political transformation to achieve world recognitions, as evident by its incremental liberations in social, cultural, and intellectual endeavours during this period of rapid economic growth. However, China’s offended reactions to this Nobel Prize corroborate its own insecurity, which translates to retrogression instead of modernization. China has gone so far as to deprecate the Nobel Committee decision “a violation of the principles of Peace Prize”. China claims that its “sovereignty and dignity are violated” and awarding Liu “is equivalent to encouraging crimes in China”. The state-run Chinese newspaper further condemned that the award was part of a Western “ideological war” against China. An open letter, written by 23 retired Communist party officials, is demanding more freedom of expression and an end to the “scandalous” practice of censorship. Our PM Stephen Harper, US President Barack Obama and Japanese PM Kaoto Kan have also urged for the release of Mr. Liu.

As Canadians, we are proud of our Charter-guaranteed freedom of expression. But once in a while, our liberty could be jeopardized too. Students advocating anti-abortion were banned from Carleton University because of its “disturbing and offensive” nature and were subsequently arrested for trespassing. The students believed that their right to freedom of speech was infringed. South of border, they are not doing any better either. Slate has pointed out that the US Supreme Court has made many exceptions to the freedom of speech protection under the Constitution. In a recent case Snyder v. Phelps, the US Supreme Court will consider whether a person had the right to protest at a soldier’s funeral with signs such as “Thank God for Dead Soldiers” and “You’re Going to Hell”. The question is whether the Constitution must tolerate “exploiting this bereaved family”. The court now faces a quandary over free speech or invasion of privacy. As George Jonas wrote in the National Post in reaction to the incident at Carleton University: “liberalism’s achievements, such as free expression, are only threatened by liberalism’s sensibilities and institutions, faux or real, in our universities, courts, governments and human rights organs.”

Animal Abuse Registry Made Available to the Public

New York’s Suffolk County legislature passed an animal abuser registry law. The names, addresses and photographs of convicted animal abusers will be displayed online, an idea that is similar to the sex offender registry. This law was passed unanimously on October 12^th and will become the nation’s first public database of animal cruelty convicts. The rationale for this database was to prevent domestic violence, as “most serial killers began as animal abusers”, said the Suffolk County Society for the Prevention of Cruelty to Animals on the WSJ Law Blog.

In April, a US court quashed an animal cruelty law, which includes charges against “possession of certain depictions of animal cruelty”, in U.S. v. Stevens due to a violation of freedom of speech (reported here at theCourt.ca and here at BBC). Now, animal abusers are made tantamount to sex offenders. If you could analogize “possession of certain depictions of animal cruelty” to “possession of child pornography”, should animal cruelty law be revived? To solve that problem, the Senate has passed a much more narrowly defined bill, banning the “creation, sale and distribution of so-called ‘crush videos’ –sexual fetish films in which small animals are maimed or killed.”

In or Out? The State of “Don’t Ask, Don’t Tell”

The most recent chapter in the “Don’t Ask, Don’t Tell” saga was penned this past week as a US appeals court temporarily reinstated a ban on openly gay service. Initially conceived under the Clinton administration as a compromise between the out-right ban on homosexual service during the Reagan era and Clinton’s campaign promise for a policy of complete openness and neutrality, DADT has since become a stalwart of partisanship in American federal politics. In September, a federal court overturned the policy as a violation of gays and lesbians’ First Amendment rights . Shortly thereafter, Congressional Democrats unsuccessfully attempted to pass a repeal. In October, a federal court ordered an injunction against enforcement of the policy . Ironically, while the Obama administration ultimately remains in favour of repealing the policy, it actually initiated this most recent motion to temporarily reinstate the ban, preferring to have the policy overturned in Congress rather than by the courts. While, no doubt, repealing the ban through the democratic process would seem to provide the most satisfying conclusion to “Don’t Ask, Don’t Tell,” it’s unfortunate that such a fundamental issue of rights and equality should be swept up into the, shall we say, ‘density’ of the American political system…

The Col. Williams Incident

While not endemic relative to the “Don’t Ask, Don’t Tell” saga to the south, the Canadian military has also received some bad press as of late. This past week, Colonel Russell Williams, former commander of the Canadian Air Force Base at Trenton, pleaded guilty to two murders, two cases of sexual assault, and a string of break and enters. A number of family members and friends of the deceased were present. While the descriptions of the murders are unsettling in their own right, equally, if not more, disturbing, are some of the photos of Col. Williams dressed in women’s underwear stolen during the break and enters.  Williams will serve two concurrent life sentences . While the military is now moving to remove Williams’ ranks, it remains unclear what he will lose in terms of benefits, specifically his pension. Given his rank and the seeming ‘out of the blue’ nature that surrounded the charges, one of the biggest questions that remains concerns how exactly Williams was able to successfully live a double life Patrick Bateman would be proud of for so long before he was caught.

Think Twice before You Make Online Comments

“If the bubble touches me, you’re going to be arrested for assault,” said Toronto Police Constable Adam Josephs to a non-violent anti-G20 protestor. This incident was videotaped and posted on YouTube and led to massive retaliations: Constable Josephs was dubbed “Officer Bubbles”, and “Officer Bubbles Cartoons” quickly became viral on YouTube.

Constable Josephs is now filing a $1.2M lawsuit against YouTube, demanding YouTube to release the identity of YouTube user ThePMOCanada and other anonymous users who commented over the “Officer Bubbles” parodies. His statement of claim is available here. In general, Mr. Josephs is seeking damages for his reputation.

In Canada, defamation laws apply to online content, and websites are responsible for defamatory comments posted online. Richard Dearden, a lawyer specializes in media and defamation law, told the National Post: “Lots of people don’t seem to understand that the laws of defamation apply to online comments.”

Thomas Reuters will not allow anonymous comments on its website anymore. A New York City Supreme Court judge ordered Google to release identities of commenters who gave defamatory comments to a woman on YouTube videos. Thus, internet users cannot remain anonymous and exercise their “freedom of speech” anymore.

This case highlights that a person could be held responsible for frivolous comments that they made online. The “freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication”, subject to a reasonable limit, is entrenched in our Charter. Whether the Court will interpret that in favour of Constable Josephs or YouTube remains to be controversial.

Google and Facebook Facing Privacy Issues

Canada’s Privacy Commissioner is busy investigating a couple Web giants lately: Google and Facebook. Privacy Commissioner has ruled that Google violated Canadian privacy law when it inadvertently collected personal data that were transmitted on unencrypted WiFi networks while photographing neighbourhoods for its Street View mapping feature. The data collection was a “careless error” of a Google engineer who wrote the code in 2006; yet Google never took responsibility to assess the implications of this potential privacy breach. Privacy Commissioner advised Google to educate employees about privacy laws and ordered Google to delete all confidential data collected in Canada by February 1^st, 2011.

In Canada, privacy breach investigation of Facebook may be in the offing after the WSJ revealed that the site has been leaking user information to advertisers by third-party applications, including the popular games FarmVille and Texas Holdem. With 56 million people “farming” in FarmVille, user privacy breaches could have serious ramifications. It is worth noting that the WSJ is owned by New Corp., which owns the social network MySpace, which is one of Facebook’s major competitors.

Facebook admitted the privacy problem and reassured users that the leaks were unintentional but a flaw in technical details of Internet browsers. However, is Facebook doing enough to protect user privacy? Or is this an inherent problem of the Internet?