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Re: US court-case resolved against "Right to link"

From: Harry Halpin <hhalpin@ibiblio.org>
Date: Fri, 23 Jan 2015 12:31:23 +0100
Message-ID: <CAE1ny+4QW=sFKrJbT0WH2dk0dpfjxxWGP8-2iaG3N-xhEJ3=qQ@mail.gmail.com>
To: Chaals from Yandex <chaals@yandex-team.ru>
Cc: "www-tag@w3.org" <www-tag@w3.org>
On Fri, Jan 23, 2015 at 12:10 PM,  <chaals@yandex-team.ru> wrote:
> Before commenting on the case, it is worth having a link to the *actual judgement*. Reporting of sentences in contentious cases is unfortunately liable to leave out important details.
>
> 23.01.2015, 13:54, "Harry Halpin" <hhalpin@ibiblio.org>:
>> In particular, with Barrett Brown was given 5 years for linking to a
>> dump of archive, where unbeknownst to Barrett, credit card information
>> was in the archive.
>>
>>  Although one may or may not agree with Barrett's rather idiosyncratic
>> statements and motivations, nonetheless it seems important that the
>> right to link not be overturned by politically-motivated court-cases.
>
> What *was* the motive? More or less all court cases are politically motivated, some of them for reasons people generally like, such as the goal to protect the right to personal safety, and some less likely to win universal acclaim. Courts in liberal democracies are also in the business of providing fair treatment to people regardless of whether those people actually "deserve" it or not.

Agreed, very good point. In particular Brown was prosecuted on a
number of other charges including some that would clearly be illegal
and outside of the TAG's jurisdiction, and sorting through them
requires real work.  I'll work on getting the final judgment and
sentencing from the lawyers, as I'm getting conflicting reports about
how much the linking played in the final sentencing, ranging from the
original claim that it was the basis of prosecution in the Guardian to
another site saying  the prosecution dropped that particular charge
last May. (http://mashable.com/2014/03/05/hyperlinking-barrett-brown/).
However, it's important when bringing up court cases (and I brought
this up when it first happened) to follow them to the conclusion.

Here's the official statement by the prosecution: "By transferring and
posting the hyperlink, Brown caused the data to be made available to
other persons online, without the knowledge and authorization of
Stratfor and the card holders." [1]. The defense used the first
amendment to ask for a "theft" charge to be dismissed [2], and some
sources say that was successful. However, Brown still seems to have
been prosecuted as an "accessory to hacking", so the question is
whether the linking played a role in that charge as well. I've emailed
the lawyers for a copy of relevant documents.

>
> There are many aspects of a "right to link". People in human rights often say "your right to swing your fists around ends at my nose" - but in fact it ends somewhere in the murky area before it gets there, typically (legal systems vary greatly and both explicitly provide and effectively permit all kinds of exceptions) about the point where "a reasonable person would be afraid you're going to hit them".
>
> All of which is to say, the sort of careful analysis that the TAG does for technical issues is necessary when responding to questions of law, too - although there are lots of differences in the details, the approaches used, and the methods for acting on the results…

In particular, I think the right to link should be defended
*regardless* of the content linked to, even if the content would by
itself be deemed illegal, since definitions of illegality vary across
borders quite considerably and change over time. Having the technical
architecture of the Web dependent on these often ill-conceived laws
seems backwards, as it may be better to have the technical community
explain to lawmakers why these laws should be reformed to match the
existing web architecture.

>
>> http://www.theguardian.com/technology/2015/jan/22/barrett-brown-trial-warns-dangerous-precedent-hacking-sentencing
>>
>> Worse, this does not bode well not only for the right to link, but for
>> anyone using big data (where the data may contain information that is
>> unknown to you, which is usually the case in big data!), and so may
>> have a chilling effect on releasing open data and linking data in
>> general.
>>
>> While it's probably too late for the technical community to comment on
>> this case, we should comment on this in order to prevent future
>> prosecutions over linking.
>
> Perhaps. But we should make sure we are clear about what we are commenting on.

There is already one TAG finding related via "deep linking" (i.e.
access control and linking)
http://www.w3.org/2001/tag/doc/deeplinking.html

TimBL has some good older personal statements "The ability to refer to
a document (or a person or any thing else) is in general a fundamental
right of free speech to the same extent that speech is free. Making
the reference with a hypertext link is more efficient but changes
nothing else."

http://www.w3.org/DesignIssues/LinkMyths.html

One interesting question for the TAG might be to start working in
partnerships with a volunteer group of international lawyers if these
legal questions keep re-occuring - perhaps a good reason to get in
touch with the Berkman and NEXA centers.

   cheers,
       harry

[1]http://www.justice.gov/usao/txn/PressRelease/2012/DEC2012/dec7brown_barrett_ind.html
[2]http://www.scribd.com/doc/210866769/Barrett-Brown-Motion-to-Dimiss-Indictment
]
>
> cheers
>
> --
> Charles McCathie Nevile - web standards - CTO Office, Yandex
> chaals@yandex-team.ru - - - Find more at http://yandex.com
Received on Friday, 23 January 2015 11:31:54 UTC

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