< Legislating Speech On the Internet in California and the Rest of the Country


Friday, October 04, 2013

BOB GARFIELD:  California has recently passed two laws meant to protect individuals online from harassment, and from themselves. A bill signed into law this week would make revenge porn, the uploading of nude images without the consent of the person pictured, a crime. Late last month, the legislature also passed the so-called “eraser” law, empowering minors to have embarrassing material removed from the Internet. It seems as though California is at the vanguard of Internet law, but Eric Goldman, law professor at Santa Clara University School of Law, says the devil is in the details. And there are a lot of details. Eric, welcome to On the Media.

ERIC GOLDMAN:  Thank you very much, glad to be here.

BOB GARFIELD:  We've talked about revenge porn on our show several times. It's a problem, but does this new law actually address the problem?

ERIC GOLDMAN:  At most, it addresses one specific category thing that might be characterized as revenge porn, when someone takes a photo and then goes and publishes it to try and cause harm to the depicted individual. But there are other kinds of things that might qualify as revenge porn, and this law doesn’t address them at all. The law doesn’t attempt to regulate the websites that allow users to publish content. The law doesn't appear to cover selfies, so if somebody takes a picture of themselves and sends it to somebody else that appears not to be covered by the law. And the law doesn’t cover the fact that once a post is made, other people might copy and paste that post and put it somewhere else. The law also doesn’t attempt to address that issue, as well.

BOB GARFIELD:  And even in what it does address, the idea of somehow proving the intent when somebody posts strikes me as a  pretty high threshold for conviction of this misdemeanor crime.

ERIC GOLDMAN:  The law requires that the government show that the defendant had an attempt to cause serious emotional distress. I’m not quite sure what kind of proof is going to be required to show that, but that’s a high level of proof.  And chances are if the government has that high level of proof, there’s’ probably other crimes that were committed along the way.

BOB GARFIELD:  All right, let’s talk about the new eraser law. We've talked about the so-called “right to be forgotten” in the past, but that's also not necessarily a straightforward issue to legislate. How does the California version look and what are its prospects?

ERIC GOLDMAN:  The California law attacks one specific problem. It allows a minor to come back and take down a particular posting that they’ve made under certain circumstances. The law doesn’t apply to any place that the post might have been copied to. It’s only with respect to the original post that was made. And, as a result, it doesn't allow minors to scrub the Internet, which is, I think, what the typical “right to be forgotten” model is designed to do.

So, in the end, I’m not sure what this law actually does. It probably doesn't do much, except make a whole lot of new complex laws for people to worry about.

BOB GARFIELD:  Mm! Well intended though, right, the notion that if you’re under 18 you are not mature enough to sign a contract and, presumably, just too stupid to realize the, the consequences of careless posting.

ERIC GOLDMAN:  We do have a social dilemma here, and a pretty big one. The new generations have the power to publish that older generations never had, without having been taught how to wield that power wisely. I’m not sure the legislative solution is going to be the correct fix. And this law doesn't actually either prevent kids from putting their foot in their mouth and, more generally, I think that allowing people to rewrite history creates its own sets of concerns. We can’t change history.

We can make sure that the consequences of history are thoughtfully considered, but if someone does something stupid, in the end there’s only so much that we can do from a legislative solution to remediate that problem.

BOB GARFIELD:  Now, irrespective of whether the laws are well thought out, when legislation is passed in a state, especially one as populous as California, doesn’t that tend to set the bar for the rest of the country?

ERIC GOLDMAN:  We really struggle figuring out the implications of a state trying to regulate the Internet. The Internet is a  borderless network. It cuts across not only state lines, but country lines. My guess is that some of the leading social networking sites that are based in California fully intend to comply with the law. But then what about the networks outside of the state? What are they supposed to do? And we don’t really have a good answer for that.

Now we have to decide, do we care about California or not? And if we do care about California, chances are they reached outside their borders and tried to regulate something that’s only Congress’ purview.

BOB GARFIELD:  Is it your sense that the legislature intends to make de facto national law by prominently passing these Internet statutes?

ERIC GOLDMAN:  California legislators have had a history of thinking that they can fix the nation’s problems using the platform of the California legislature, kind of seeking the equivalent of a promotion. They wish they were members of Congress and had Federal oversight. They actually haven’t been elected to that position.

BOB GARFIELD:  Whether it’s anti-bullying statutes or revenge porn or the eraser law, it strikes me that whenever legislators try to harness the Internet, they always screw it up. Either the laws are too restrictive, or they have too many holes in them. Has anyone ever successfully figured out how to legislate problematic speech online?

ERIC GOLDMAN:  My personal vote is no, and in part it’s because the technology constantly outstrips the pace of legislation. Whatever problems the legislators are worrying about, it’s probably a problem from a few years ago, and technology is gonna continue to move in ways that will render the legislative effort, at best, historical.  When it comes to technological problems, we should not underestimate the ability of technology to potentially solve the problem. And my primary example of this is the spam problem. We had a bunch of legislative efforts 15 years ago to a decade ago designed to fix the spam problem. The reality is what we just needed was better spam filters. Once we got those, spam kind of looks like a very dated problem.

BOB GARFIELD:  Dated to you maybe. The Viagra I just bought I think is just sugar, I think it’s phony.

ERIC GOLDMAN:  Oh yeah, you know, I never deal with the Trinidad-based dealers.

BOB GARFIELD:  [LAUGHS] Eric, many thanks.

ERIC GOLDMAN:  Oh, my pleasure.

BOB GARFIELD:  Eric Goldman is a professor of law at Santa Clara University School of Law.



Eric Goldman

Hosted by:

Brooke Gladstone