An amateurish video, "Innocence of Muslims," posted on YouTube in September 2012 was the catalyst for a string of anti-American protests and riots throughout the Islamic world. The short trailer, promoting an anti-Muslim film, was attributed to a motley crew of right-wing Christians in America (Sengupta, 2012). Angry mobs in Egypt were the first to react to the video on September 11 when they breached the walls protecting the American Embassy (Sengupta, 2012). That same night, the American Consulate in Benghazi was stormed by heavily armed Islamic militants (Sengupta, 2012). The militants set fire to the Consulate, killing J. Christopher Stevens, the American ambassador and three staff members, including two ex-Navy Seals (Sengupta, 2012). The incendiary video may have acted as a cover for the protest in Libya -- the State Department and the Libyan government did not point to a protest (Sengupta, 2012). But they did describe an attack by the extremist Islamist militia Ansar al-Shariah that was believed to have been preplanned, coinciding with the anniversary of 911 (Sengupta, 2012). The protests against the film spread to over two dozen countries by the end of the following week (Sengupta, 2012).
One of the men responsible for making the film, Nakoula Basseley Nakoula, was apprehended for questioning on September 15 (Sengupta, 2012). Federal probation officers cited possible parole violations, and noted his criminal record (Sengupta, 2012). By September 27, Nakoula was under arrest for eight alleged probation violations associated with a bank fraud case in 2010 (Sengupta, 2012). The terms of Nakoula's sentencing restricted his use of the Internet (Sengupta, 2012).
Since YouTube is owned by Google, it was inevitable that the Internet provider would be caught up in the fray. Google's decision was that the provocative anti-Islamic video was not a case of hate speech (under Google's rules) since it did not explicitly incite violence against Muslims (Sengupta, 2012). This declaration despite the inarguable demonstration that the video did, in fact, mock the Islamic religion. The White House is reported to have requested reconsideration by Google, but the company rebuffed the request (Sengupta, 2012). Nevertheless, Google did restrict access to the offending video in Egypt and Libya because of the circumstances on the ground were extraordinarily sensitive and because Google decided to respect the cultural norms of those two countries (Sengupta, 2012).
Definitions of hate speech are not universal and widely divergent views exist about how to legally regulate speech that is considered to be inflammatory or offensive (Sengupta, 2012). Moreover, there are free speech absolutists who argue that all speech (read: expression) should be permitted in online environments regardless of how offensive the content is perceived to be (Sengupta, 2012). As counterpoint, others argue that governments and Internet companies should be able to exercise sufficient flexibility and restraint when exceptional circumstances exist and particularly when lives may be at stake (Sengupta, 2012).
Rule About Free Speech in Cyberspace
The First Amendment of the United States Constitution protects the right to freedom of religion and freedom of expression from government interference. Freedom of expression includes rights to freedom of speech, press, assembly, association, belief, and to petition the government for a redress of grievances ("First Amendment," 2012). The authority and responsibility for Constitutional interpretation belongs to The Supreme Court ("First Amendment," 2012).
The right of freedom of speech is elemental to the right of freedom of expression. Under the right to freedom of speech, individuals are allowed to express themselves without constraint or interference by the government ("First Amendment," 2012). Substantial justification must be provided by the government for any interference with the right of the freedom of speech where the government attempts to regulate the content of speech ("First Amendment," 2012). Content-neutral legislation has considerably less stringent tests ("First Amendment," 2012). Moreover, The Supreme Court has recognized that speech which may cause a breach of the peace or cause violence may be prohibited by the government ("First Amendment," 2012). It is important to note that other mediums of expression used to communicate a message are included in the right to free speech ("First Amendment," 2012). Further, the forum in which the speech takes place influences the level of protection afforded the speech ("First Amendment," 2012).
Article 19 of the Universal Declaration of Human Rights recognizes the right to freedom of expression as a human right. Freedom of expression is recognized in a number of important international and national human rights law: Article 13 of the American Convention on Human Rights, Article 9 of the African Charter on Human and Peoples' Rights, and Article 10 of the European Convention on Human Rights. Moreover, the right to freedom of expression is recognized in the International Covenant on Civil and Political Rights (ICCPR). Specifically, Article 19 of the ICCPR states that,
"…[e]veryone shall have the right to hold opinions without interference…everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice"
("ICCPR," Article 19).
Language in Article 19 of the ICCPR also talks about exceptions. The exercise of the right of freedom of expression also carries "special duties and responsibilities" such that the exercise of rights of freedom may "therefore be subject to certain restrictions" as necessary "…[f]or respect of the rights or reputation of others…the protection of national security or of public order (order public), or of public health or morals" ("ICCPR," Article 19).
The Communications Decency Act (CDA) of 1996 was the first significant regulation of its type designed to regulate pornographic content on the Internet. In 1997, the landmark case of Reno v. ACLU heard by the U.S. Supreme Court overturned part of the law, declaring parts of the CDA unconstitutional. In his opinion, Judge Steward R. Dalzell stated,
"The Internet is a far more speech-enhancing medium than print, the village green, or the mails. Because it would necessarily affect the Internet itself, the CDA would necessarily reduce the speech available for adults on the medium. This is a constitutionally intolerable result…The absence of governmental regulation of Internet content has unquestionably produced a kind of chaos, but as one of the plaintiff's experts put it with such resonance at the hearing: "What achieved success was the very chaos that the Internet is. The strength of the Internet is chaos." Just as the strength of the Internet is chaos, so that strength of our liberty depends upon the chaos and cacophony of the unfettered speech the First Amendment protects."
(The Honorable Stewart R. Dalzell, Reno v. ACLU, 1997).
The very existence of these international laws calls to question the aphorism that "the law is prima facie territorial" (Spinello, 2011). To say that cyberspace has no borders is to ignore the architecture that enables tracking information to its source and the use of firewalls that, indeed, do add boundaries (Spinello, 2011). That Internet chokepoints are located across the globe is further demonstration of the ability of government to restrict freedom of expression in cyberspace in concert with their definitions of what that freedom means (Spinello, 2011).
Adam Smith posited that an invisible hand was sufficient to manage free market systems, but he added a caveat that moral norms were necessary for these systems to function. In practical terms, contracts that are written must be enforceable, good access to information about products and services must be available to all people (the efficient frontier), and the rule of law must prevail. If these things are in place, Smith theorized, exchanges would occur as a matter of course. A more contemporary interpretation of an invisible hand process would add that exchange occurs in a decentralized manner and absent any explicit agreements among the stakeholders or agents. Moreover, the exchange process is not intentional, in that, it is not coordinated and it is a byproduct of the objectives, not identical to them. From this, it is apparent that the exchange process can work without the stakeholders or agents being aware that it is occurring. To whit: it is invisible.
One difficulty is that transparency and invisibility do not go hand-in-hand. An unregulated market has not demonstrated responsible action in cyberspace. The problem with this statement: "…market pressure swill force vendors to respect privacy right to a level consistent with the needs and interests of consumers..." is that a market is not a set of homogeneous consumers who can agree on a constellation of interests and needs (Spinello, 2011). It is not even accurate to say the common denominator is the deification of "absolute profit margins," since there remain in the market, those few who would put other aims above profit (Spinello, 2011).
It does seem that whenever there has been a lag between legislation and disruptive technology, ethics takes a backseat. The privacy issues that are very much at the forefront of those government entities, like the Federal Trade…