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posted by janrinok on Wednesday June 10 2015, @09:25PM   Printer-friendly
from the unintended-consequences-anyone? dept.

On Dark Web sites like the Silk Road black market and its discussion forums, anonymous visitors could write even the most extreme libertarian and anarchist statements without fear. The rest of the internet, as a few critics of the US judicial system may soon learn, isn't quite so free of consequences.

Last week the Department of Justice issued a grand jury subpoena to the libertarian media site Reason.com, demanding that it identify six visitors to the site. The subpoena letter, obtained and published by blogger Ken White, lists trollish comments made by those six Reason readers that—whether seriously or in jest—call for violence against Katherine Forrest, the New York judge who presided over the Silk Road trial and late last month sentenced Silk Road creator Ross Ulbricht to life in prison.

"It's judges like these that should be taken out back and shot," wrote one user named Agammamon, in a comment thread that has since been deleted from Reason.com's story on Ulbricht's sentencing.

"It's judges like these that will be taken out back and shot," answered another user named Alan.

"Why do it out back? Shoot them out front, on the steps of the courthouse," reads a third comment from someone going by the name Cloudbuster.

The subpoena calls for Reason.com to hand over data about the six users, including their IP addresses, account information, phone numbers, email addresses, billing information, and devices associated with them. And it cites a section of the United States criminal code that forbids "mailing threatening communications." When those communications threaten a federal judge, they constitute a felony punishable by as much as 10 years in prison. (The average internet user has no such protection.)

The Streisand Effect lives.


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  • (Score: 2) by CirclesInSand on Thursday June 11 2015, @12:16AM

    by CirclesInSand (2899) on Thursday June 11 2015, @12:16AM (#194769)

    Freedom of speech in the United States is not absolute

    It should be, and the public should learn to convict based on intent, not based on action. It is not the conveyance of information that a person is on the hook for. When you make a threat, another person has to make the decision "was that threat serious? should I ignore it and risk dying, or should I kill you and risk repercussion?" It is the intent to cause harm that you should convict for, not the content of the message.

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  • (Score: 2) by Anal Pumpernickel on Thursday June 11 2015, @01:18AM

    by Anal Pumpernickel (776) on Thursday June 11 2015, @01:18AM (#194781)

    It is the intent to cause harm that you should convict for, not the content of the message.

    You can't pretend the intent is separate from the message. Without the message, you wouldn't even be aware of the possibility of intent, so don't pretend you're not taking into account the content of the message.

    • (Score: 2) by CirclesInSand on Thursday June 11 2015, @02:29AM

      by CirclesInSand (2899) on Thursday June 11 2015, @02:29AM (#194803)

      It's not pretend. Case one, you see a fire in a theater and shout "fire!". Case two, there is no fire in a theater but you are upset, so you shout "fire!". The message is the same in both cases: "there is a fire in here". The intent is different in the cases: first one to make people aware of danger, second one is to create danger. The freedom of speech (if interpreted correctly, in terms of intent), makes it illegal to prosecute you for conveying the phrase "there is a fire in here" regardless of whether it is true. It should not be interpreted as a defense for other intents, such as harming people.

      • (Score: 2) by Anal Pumpernickel on Thursday June 11 2015, @03:28AM

        by Anal Pumpernickel (776) on Thursday June 11 2015, @03:28AM (#194823)

        It should not be interpreted as a defense for other intents, such as harming people.

        If you say "Hello!" with the intent of murdering someone merely by saying that, is that prosecutable?

        All prohibitions on speech are intolerable. Playing word games with intent to mask the fact that you're limiting speech in certain situations (i.e. when you have a certain intent and say certain things) is also intolerable. You shouldn't be convicted of thoughtcrime.

      • (Score: 0) by Anonymous Coward on Thursday June 11 2015, @09:46AM

        by Anonymous Coward on Thursday June 11 2015, @09:46AM (#194901)

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        I agree with Pumpernickel: those who advocate prosecuting for speech, even direct threats, even when based on inferred intent, are advocating for prosecution of thoughtcrime. Prosecuting fools who yell "fire" in a crowded theatre is not a limitation on speech, and it requires no serious consideration of intent. If the theatre is actually on fire, give the guy a medal. If it is not on fire and a panic results, prosecute. Here the only reason to consider intent is to give a break to someone who clearly did NOT mean to cause a panic. An apt parallel would be with someone who ran you over with a car on purpose versus not on purpose. If we like the presumption of innocence, then we would only want to prosecute those who were successful, while giving a break to those who did so on accident. Freedom of speech is simply the freedom to say whatever the fuck you want, and intent has nothing to do with it.

        Speech in a theatre is a curious thing, since it travels over the air and into other people's ears, and before they can parse the information, their brains sometimes make them do stupid things. This is at the heart of why your example seems to limit the freedom of speech, but really doesn't. In this context the action of yelling "fire" may directly cause harm before it is perceived as speech. In the same sense a police siren is not speech, and neither is pointing a finger, even though they may have a well interpreted meaning in some people's brains and directly cause reflexive actions. Speech is something made up of words and grammar, and it has a literal objective meaning we can make up with the help of a dictionary, or it's not speech at all. In that sense, "fire" is barely speech to begin with.

        You observe correctly that the freedom of speech must permit to say "there is a fire in here" in a way that allows listeners to parse before acting (say, in a quite calm tone, or over the net). By the same token, anyone should be allowed to write whatever the fuck they want on the net, since there we don't have the real-time aural pathway directly into people's brains, and if some people are going to react in a reflexive, unthinking way to what they read on the screen, it's them who should be prosecuted for their actions, or at least examined by medical professionals.

        I would be interesting to see a coordinated effort to flood the net with very credible looking, but ultimately fake threats. It certainly would not hurt anyone, although it would offend the hell out of some people. Here's a fun idea: one could make a pseudonymous threat directed at a large list of people. If by pure chance one of those people has an actual accident shortly thereafter, then it may be perceived as a murder, and the pseudonymous party will acquire the (undeserved) reputation, allowing it to issue more credible threats, hoping to get lucky again.

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        • (Score: 2) by Anal Pumpernickel on Thursday June 11 2015, @04:48PM

          by Anal Pumpernickel (776) on Thursday June 11 2015, @04:48PM (#195031)

          In this context the action of yelling "fire" may directly cause harm before it is perceived as speech.

          I disagree. Prosecuting someone for yelling "fire" in a crowded theater when there is no fire is a prohibition on certain speech in certain circumstances. If someone chooses to react to the speech by panicking and harming others, that's on them and no one else. Speech can't cause direct harm unless it is loud enough to damage someone's eardrums or something such as that.

          • (Score: 0) by Anonymous Coward on Thursday June 11 2015, @06:55PM

            by Anonymous Coward on Thursday June 11 2015, @06:55PM (#195096)

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            We are talking about shades of grey here. I feel that the theatre scenario just qualifies for being interpreted as an action which causes harm directly, akin to punching someone in the face, since stupider people may be habituated to acting before parsing the information and evaluating its veracity (i.e. looking around for the signs of fire), and in this case we may be able to forgive them and blame the prankster. A few generations from now, if and when people are a bit smarter on average, we won't give them the benefit of the doubt anymore.

            A more extreme example of this sort is a military commander who calmly says something like "you have a direct order to deploy at 1500", and as a result a private jumps from a plain at a certain time. If this commander knowingly drops a private into a volcano, the former should be prosecuted. This is no longer about speech, because a private is trained and habituated to obey orders, and has no reason to doubt an order without knowing all the circumstances. The commander could as well toss the private into the volcano with bare hands. The trick is to recognize that the "speechiness" of an utterance, even of a grammatically correct sentence, is dependent on the context. Here we have something akin to us saying "ls -l" to our computer, and the latter has no choice but to obey, so when someone says "/usr/local/bin/blow-up-hepless-victims.sh" we come after the typist, not after the computer or the explosive device.

            We arguably do want people to be prosecuted for certain actions involving speech. Add to the example above a military intelligence official who falsifies a written report, which then leads directly to a pointless war on false premises. Given the right kind of context, we should be able to prove in court that the official directly caused the war, since this report could not have any other consequences, given its place within the system. Here too we have shades of grey, and you could very wisely observe that a bureaucracy which deals with this stuff should be robust enough to detect and crush a rogue actor or even a small conspiracy (that is, it's really the system's fault), but hopefully you get the gist of what I am saying.

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            • (Score: 2) by Anal Pumpernickel on Thursday June 11 2015, @07:06PM

              by Anal Pumpernickel (776) on Thursday June 11 2015, @07:06PM (#195101)

              I feel that the theatre scenario just qualifies for being interpreted as an action which causes harm directly, akin to punching someone in the face, since stupider people may be habituated to acting before parsing the information and evaluating its veracity (i.e. looking around for the signs of fire), and in this case we may be able to forgive them and blame the prankster.

              Speech is still speech even if an idiot takes foolish actions in response to it. That's their own doing.

              A more extreme example of this sort is a military commander who calmly says something like "you have a direct order to deploy at 1500", and as a result a private jumps from a plain at a certain time.

              Just like you shouldn't follow illegal orders, you shouldn't follow orders like those, either.

  • (Score: 2) by MichaelDavidCrawford on Thursday June 11 2015, @01:35AM

    by MichaelDavidCrawford (2339) Subscriber Badge <mdcrawford@gmail.com> on Thursday June 11 2015, @01:35AM (#194785) Homepage Journal

    sat around all day long planning your destruction, but did not act on my intent, nor told anyone about my intent. Have I committed a crime?

    Now suppose I posted an actual threat. Do I intend to murder you? It's hard to say unless you ask me, or find some other evidence such as a recent purchase of a weapon.

    We have laws in large part to prevent the outbreak of violence among the population.

    --
    Yes I Have No Bananas. [gofundme.com]
    • (Score: 2) by CirclesInSand on Thursday June 11 2015, @02:37AM

      by CirclesInSand (2899) on Thursday June 11 2015, @02:37AM (#194806)

      Ok sure. Whether you have committed a crime depends on the competence of the legislature, which I doubt is what you were intended to discuss. Perhaps you meant "should it be a crime?"

      If you only planned it in your head, then you haven't put anyone or the public in danger. On the other hand, if you publish a book full of a person's schedule and reasons they should be killed, then you've clearly demonstrated intent to harm another person. In my (minority) opinion, "well he deserved it" should be an affirmative defense for a jury to decide. But "planning" in terms of thinking and "planning" in terms of publishing have very different effects on the target.

      The posters in the story clearly made their alleged threats public, so the question of "not telling anyone" is not the situation here.

      And I must insist on disagreeing with your last statement. We have laws so that the outbreak of violence is dealt with with reason and consistency, not to prevent violence. The prevention of violence against a person is his own responsibility, not the governments. It's important, because a juror should never think "if I don't convict him, then he might hurt someone else". He should only be thinking "do the charge, sentence and probability of the defends guilt balance out?". The purpose of laws is to prevent one person from having his hand cut off for stealing bread, and another from getting a pass.

      • (Score: 3, Interesting) by MichaelDavidCrawford on Thursday June 11 2015, @03:25AM

        by MichaelDavidCrawford (2339) Subscriber Badge <mdcrawford@gmail.com> on Thursday June 11 2015, @03:25AM (#194822) Homepage Journal

        I posted about this the other day. For a crime to be burglary specifically requires one to have the intent to commit a crime while entering a structure.

        If I steal your wallet while you're not looking, that's theft.

        If I steal your wallet at gunpoint, that's robbery.

        If I enter your home so I can steal your wallet, that's burglary.

        For burglary to be outlawed was not intended to prevent the loss of your wallet but to prevent me from being violent towards you.

        --
        Yes I Have No Bananas. [gofundme.com]