From: Declan McCullagh <declan@pathfinder.com>
Date: Wed, 4 Jun 1997 22:03:02 +0800
To: Jim Choate <ravage@EINSTEIN.ssz.com>
Subject: Re: Webpage picketing (fwd)
In-Reply-To: <199706040442.XAA00428@einstein.ssz.com>
Message-ID: <Pine.GSO.3.95.970604085107.19844C-100000@cp.pathfinder.com>
MIME-Version: 1.0
Content-Type: text/plain



I'm in NYC now and have to leave for work in a moment, so I'll keep
my response to Jim brief.

> In short it is a statement that it MIGHT be possible to use publicly
> funded network backbones to seriously impede communication using the
> system against itself. 

Jim's fundamental misunderstanding below seems to be, as far as I can
tell, confusing public funding with public forums. Just because an entity
receives most, or all, of its funding from the state does not mean that
that entity or the service that entity provides becomes a public forum for
the purposes of First Amendment analysis. After all, many research
universities receive half their revenues from Federal grants but they do
not become public fora. I suppose part of the analysis in this case might
turn on whether the state is setting up such networks itself and "owning"
them or whether it's providing grants to a private entity.

> I am stating the status quo, the level of expectant privacy on a public
> street (internet) is in no way nearly as comprehensive as in your home
> (intranet). Should you doubt this, walk around your living room with the

Again, the Internet is not a public street. It is not owned by the public. 
It is not a public forum, which is a term with a special legal meaning. It
is a privately-owned collection of networks. (Part of the problem here is
that we use "private" to mean both individually-owned and "expectation of
confidentiality or security.")

But I agree with Jim on the broader point, that we should question state
funding of network infrastructue. 

-Declan



On Tue, 3 Jun 1997, Jim Choate wrote:

> Hi,
> 
> Forwarded message:
> 
> > Date: Tue, 3 Jun 1997 23:57:47 -0400 (EDT)
> > From: Declan McCullagh <declan@pathfinder.com>
> > Subject: Re: Webpage picketing
> 
> > Pickets arise from a peculiar set of circumstances that arise in
> > meatspace, including public streets. Sure, you can picket The Gap at the
> > store up the block from my office on Connecticut Avenue. But try to wave
> > those signs outside The Gap in the Pentagon City mall not far away, and
> > you'll be chased off by the security guards. It's a private space;
> > different rules apply.
> 
> Pickets arise from people getting pissed off about some aspect of their
> economic life and using their right to free speech to express it.
> 
> Absolutely, but I can most definitely picket the mall and the store at that
> point with complete impunity from the sidewalk. And please correct me if my
> geometry/geography is wrong, but in order to get into the private parking
> spot at the private mall you do have to drive off the public street ACROSS
> the public sidewalk where all those picketers are standing. After all, if
> the mall won't let me express my opinions then I have an economic right as
> a consumer to express my displeasure and try to warn other consumers of the
> danger. It is irrelevant to my goal as a economic consumer whether I picket
> the store inside the mall or outside. What IS important is that I have legal
> access to ALL the customers using that business(es).
> 
> > And I think that we should be very careful about calling the Net a public
> > forum. Sure, places like Usenet resemble a public forum in some ways, but
> > it's not the same.
> 
> But I am not calling the net a public forum. I am specificaly talking about
> a special case that might arise if we are not aware of the consequences. In
> short it is a statement that it MIGHT be possible to use publicly funded
> network backbones to seriously impede communication using the system against
> itself.
> 
> > I think Greg has it right: you want to forcibly intervene in a
> > communication between two consenting parties. What you want is similar to
> > the right to come into my home and prevent me from speaking freely to my
> > friend or lover. 
> 
> Not at all, unless you are implying the same expectation of privacy on a
> public street (or backbone) that you would get in your home (or intranet).
> I am stating the status quo, the level of expectant privacy on a public
> street (internet) is in no way nearly as comprehensive as in your home
> (intranet). Should you doubt this, walk around your living room with the
> blinds drawn butt-naked and then try that again in the middle of downtown
> at 5pm. If you want to go to store A and it is covered in picketers, you
> WILL hear and see them even if you don't want to. Their right to speech is
> such that if you want to use that business you must submit to an exposure of
> their views however brief. My thesis is that it may be possible to extend
> this legaly supportable model to a backbone which derives some or all of its
> income from public funds. This could be a BAD thing, is it and why?. If it
> is acceptable use of publicly funded resources in meatspace why should
> publicy funded resources in bitspace be exempted? No more, no less.
> 
>    _______________________________________________________________________
>   |                                                                       |
>   |            Speak the truth, but leave immediately after.              |
>   |                                                                       |
>   |                                     Slovenian Proverb                 |
>   |                                                                       |
>   |     Jim Choate                                 ravage@ssz.com         |
>   |     The Armadillo Group                        www.ssz.com            |
>   |     Austin, Texas, USA                         512-451-7087           |
>   |_______________________________________________________________________|
> 
>