Tuesday, March 24, 2015

Current international tensions and military operations could pose new issues for "user generated content", even for civilian speakers

For bloggers, it’s generally safe to hyperlink to things they want.  In practice, this has been true for video embeds, too.  It does seem that in a few rare cases, people have been sued for defamation based on content that they have linked to.  The risk is reduced when links are to normally “reputable” sources.
Remember, the 1996 Communications Decency Act had aimed to make it illegal not only to present “indecent” content but even to link to it, which could set up a “chain letter problem”.  That provision was struck down by the Supreme Court in 1997, but ironically, one of the subsections of the Act, which is properly called the Telecommunications Act, was Section 230, which protects service providers (and forum moderators, for example) from downstream tort liability (like defamation, privacy, injury) for content provided by others.  In recent years, especially in the age of cyberbullying and revenge porn, some see this as controversial.  But it also means that bloggers wouldn’t normally be responsible for torts committed in comments, and moderating comments (for spam) does not compromise the protection.
It would seem that posting a link to a site providing encouragement for illegal behavior (especially child pornography) might be illegal if done intentionally, as part of a “conspiracy” to instigate such behavior.  It isn’t too much of a stretch to wonder how the law could apply in matters related to terrorism, such as instructions for munitions, or most recently, links to a “hit list”.  Of course, such a concern could have existed pre-9/11, with issues like organized crime (and incidents like these happen on soap operas today).
It’s also logical to wonder if this could apply to more recent news stories related to US military activity overseas.  Arguably, this concern moves beyond crime to asymmetric warfare, of an unprecedented nature, with the potential to disrupt the user-generated-content world in blogs and social media (without gatekeepers) that we have come to take for granted. 
The concern regarding war is not totally unprecedented.  In past generations, established news generations had to “worry” about this during the Vietnam War (“The Pentagon Papers”) and even WWII (“loose lips can sink ships”).  The career of Alan Turning becomes incredibly ironic in retrospect.  It was common for the radical Left, especially in the late 60s to early 70s period, to regard military members who flew the “Nixon” raids over the Vietnam theater as personally culpable, and I even recall going to meetings where these things were said.   

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