In the wake of his suicide, Swartz’s case quickly became a cause celebre, and a group of legislators including Darrell Issa (R-Calif) — who was also instrumental in the fight against SOPA and PIPA — recently asked the Justice Department to look into the behavior of the U.S. attorney’s office in pressing for a severe penalty against the young hacker. Zoe Lofgren (D-Calif.) has also proposed a number of changes to the Computer Fraud and Abuse Act that would prevent the state from going after others for what Swartz did.

Breaching terms of use shouldn’t qualify as hacking

Among other things, those changes — some of which were proposed by users of Reddit during a session with Lofgren last month — would prevent prosecutors from pressing charges for simple breaches of a website’s terms of service or user agreement, which is one of the clauses in the CFAA that was used against Swartz. Changing a computer’s hardware address (which Swartz did in order to avoid detection) would also not qualify as criminal hacking.

But while Aaron Swartz’s experience has drawn some much-needed attention to the problems with outdated laws like the Computer Fraud and Abuse Act — which was written in 1986, before the web was even invented — we shouldn’t forget that others have also been hit with this overly broad and vague piece of legislation, even though they haven’t become popular causes in the way that Swartz has.

As Marcia Hoffman of the Electronic Frontier Foundation has pointed out, one of the most problematic parts of the CFAA is that the law makes it a crime to access a computer or website “without authorization” or in a way that “exceeds authorized access,” but those terms are never really defined. In a number of cases, prosecutors have defined them to mean that anyone accessing a web-based service in any way that isn’t explicitly approved by the terms of use is committing a crime under the act.

A broad and overly vague legal net

In 2008, for example, prosecutors used this aspect of the law to go after a woman who created a MySpace profile using an assumed name (although a judge declined to hear the case) — and as one security researcher has explained, the same principle could easily be used to charge anyone who simply goes to a website without the explicit permission of the owner.

Aaron Swartz

One of those who has been caught in this particular net is almost the polar opposite of Aaron Swartz, although both were clearly hackers: Andrew Auernheimer, who is known by the online handle Weev, has also been found guilty and is facing potential jail time for unauthorized access to a computer or web service. In his case, Weev and a fellow hacker collected a list of AT&T customer email addresses by generating random URLs at the AT&T website, and then gave them to Gawker in what they said was an attempt to draw attention to AT&T’s lax security measures.

Unlike Swartz, who has been hailed by most of his friends and acquaintances — including luminaries such as Creative Commons founder Lawrence Lessig and even the creator of the World Wide Web, Sir Tim Berners-Lee — as a force for good and a crusader for openness and other just causes, Weev is somewhat notorious for being an online troll who reportedly delights in causing mischief, aggravation and hurt feelings wherever he goes.

Being a troll shouldn’t qualify as hacking either

All of that may make him less than appealing as a public cause, but the flaws in the Computer Fraud and Abuse Act are just as obvious in his case: in fact, what Weev did barely even qualifies as hacking, since he simply generated random iPad ID numbers and then used those to get the AT&T email addresses. In other words, the addresses were freely available and not hidden behind technological locks or passwords of any kind (Weev also made no attempt to use them or sell them).

The bottom line is that the CFAA isn’t worth scrapping or rewriting just because it was used to go after Swartz, or even Weev — the biggest issue is that it is so broad and technologically ignorant that it can be used to criminalize behavior that should barely even register as a nuisance, let alone a crime. Swartz’s downloading of JSTOR documents wasn’t serious enough for the archive to press charges, and yet the prosecutor chose to threaten the young hacker with jail time.

At its best, hacking of the kind that both Swartz and Weev engaged in is no different than the kind that Microsoft founder Bill Gates employed when he let lose a worm that shut down a corporate computer network when he was 14. Within reason, testing the limits of computer systems and revealing security holes is something for which we should be thanking hackers — or possibly admonishing them — not sentencing them to prison terms.

Post and thumbnail images courtesy of Shutterstock / ER 09 and Fred Benenson

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But it’s not just their love lives that French officials find tough to negotiate: the internet, too, gives them plenty of heartache.

One example? A series of offensive Twitter memes that swept through France over the past couple of weeks has provoked a strong reaction at the highest levels.

First came #UnBonJuif (“A good Jew”), which became the spark for a volley of anti-Semitic jokes. Then there was #SiMonFilsEstGay (“If my son was gay”). You can guess the rest. Clue: it wasn’t nice. France has a particular sensitivity to hate speech, and the torrent of Twitter abuse prompted Najat Vallaud-Belkacem, the Minister for Women’s Rights, into action. In the pages of Le Monde, she denounced those spewing racist and homophobic messages and said she plans to start a consultation involving Twitter in the New Year to see what can be done to stop the tide.

Propos homophobes sur Twitter : en contradiction absolue avec les valeurs de notre République. Inacceptables et punis par la loi française.

— Najat Belkacem (@najatvb) December 22, 2012

Homophobic remarks, she said, were “in absolute contradiction with the values of the Republic”.

Of course she’s right — homophobia is vile. But it will be interesting to see where this goes. Is it grandstanding from a politician, or will there be a genuine policy that gets produced? The way the government chooses to act could be indicative of its approach to the internet… and it could go either way.

After all, seen in one context, this is yet another attempt by French officials to “civilize” the internet. That’s been a regular refrain from French leaders, first with Sarkozy and now under the man who replaced him. The internet — an American invention — is a debasing force on France, a threat to l’exception culturelle, and a powerful disruptor that must be kept in check.

But it’s not just France that feels this pressure. In another sense, this is just one small part of the much wider struggle between Europe’s establishment and the social media. Governments across the continent have been sent into a tailspin over internet freedoms. Germany has struggled with Neo-Nazis on Twitter, and Britain probably has the best — or worst — form on this. It’s thrown people in prison, dragged silly court cases on forever, and held parliamentary investigations into how social media up-ends the order of things.

And the battle between Twitter and free speech is isn’t just an issue in Europe, or in censorious regimes. The same questions are appearing, if in slightly altered forms, in America. Take the unmasking of Reddit troll Violentacrez, or the decision to publish the addresses of registered gun owners. Even in America, people are beginning to understand that “free speech” doesn’t mean “speech without consequences”. Exercising your right to say what you like to extremes doesn’t mean you won’t get held accountable.

Perhaps it’s all to be expected.

It’s nearly a year since Twitter announced that it would censor tweets in some jurisdictions — an agreement that it largely got blasted for, even if it was sensible. Now officials are trying to flex their muscles.

However, when new legislation gets mooted (as it inevitably does) we need to remember that almost every country already has ways of dealing with hate speech in real life, they just need to understand sensible ways of applying those laws in the online environment. For example, when Twitter users falsely accused a British politician of being a child abuser, I pointed out that legal recourse to tackle was already there. Lord McAlpine has wasted no time acting on that.

At the same time, ordinary people — who have suddenly been granted a super power — need to understand where social media slots into the spectrum between private conversation and public broadcast. After incorrect — and potentially dangerous — information rebounded around the network after the Sandy Hook shootings, I argued that if Twitter allows anyone to become their own media outlet, then we should all assume individual responsibility for what we tweet.

Nothing changes, but we need to navigate this course very carefully. Let’s see if France decides to take the high road or the low.

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But, despite some recent examples, search engines are not supposed to be amongst the list.

Russia’s Federal Service for Supervision of Communications, Information Technology and Mass Communications (Roskomnadzor) has issued a “clarification” to say Web search, image search, news search, video search and other content cached by search engines like Google, Yandex and Bing should not be included in the recently-launched Zapret web blacklist.

This is despite recent inclusion of Google image search and YouTube, which is put down to a “mistake” (via Roem.ru).

Such a distinction by the Russian government is an important one at a time when Google is facing growing international challenges to its long-held operating model. An Australian court ruled that Google search had been a publisher of material deemed defamatory, while a proposed German law would require Google pay a license to publish excerpts of third-parties’ news articles.

Some campaigners out there, like former Formula One boss Max Mosley, want Google to pro-actively strip out excerpts from “illegal” websites, alleviating complainants’ need to go to dozens of individual end sites to which Google points. But the Russian government’s position seems sensible since it blocks access to illegal material at source, not at the signpost.

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Proposed in August and coming up for first reading in the Bundestag this Thursday, the Leistungsschutzrecht – or, ancillary copyright — would give news publishers the exclusive right to control re-uses of their output, requiring others obtain a license even to excerpt.

Google fought back on Tuesday by using a google.de homepage campaign to ask users to complain to elected representatives, casting the issue as one both of fundamental freedoms and of practicality: “For you, it would be so much more difficult on the internet to find the information that you seek. Defend your network.”

It is a mark of how seriously Google is taking the threat that it is trying to appeal to users’ emotions, enlisting them to fight the proposals. Google argues Leistungsschutzrecht will “damage the German economy” and “threaten the diversity of information”.

German publishers have formed their own counter-campaign…

Google is widely thought to be allowed to crawl news stories of which it republishes only excerpts. Emerging law may suggest otherwise — a Belgian court ruled in 2007 that it did not have the right to run such excerpts and UK copyright authorities this year ruled commercial news aggregators (though not free alternatives like Google News) must pay a license for doing so.

In Belgium, news stories were only returned to Google after a private commercial agreement between it and publishers. So German publishers may feel confident in seeking an equivalent arrangement. And that would challenge the widely-held belief in free online excerpting.

But Germany is not the only front on which Google is facing a threat to these core values on which it operates…

This week an Australian court ruled Google had defamed a man wrongly accused of being a criminal in a web page not hosted by but indexed by Google for its search results.

That contradicts the settled view of many legal jurisdictions that online platforms are not to be considered publishers of information placed by others, though is consistent with other case law that holds such platforms liable from the moment they are made aware of infringing material on their platform.

My colleague, paidContent legal correspondent Jeff Roberts, says this may make it more likely would-be litigants shop for victories in forums like Australia.

France also recently set Google a year’s-end deadline for agreeing to voluntarily pay news publishers — or  it may legislate that it must pay a levy for the privilege. Google told French ministers such a compulsion would “threaten its very existence”.

So now Google is battling challenge to two of its central tenets — that it is not a publisher and only excerpts parts of articles.

Asked why its members don’t just block Google using robots.txt, the Federation of German Newspaper Publishers on Tuesday said via Twitter: “Robots.txt is a standard from the internet stone age. Why doesn’t Google want to use (alternative standard) ASCAP ACAP, that is the question.”

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While it seemed then that sanity had prevailed, it turned out that the case of Paul Chambers was only the start. The past months have seen several people in the UK arrested for saying things through social media that have been deemed ‘grossly offensive’. Some have gone to jail.

And now the director of public prosecutions, Keir Starmer, appears to have realised that something is going wrong here. According to the BBC, Starmer is to invite Facebook, Twitter and others to meet with academics and lawyers to discuss the issue, so that new guidelines can be formulated for the police and courts.

As you’ll have guessed, if it wasn’t already obvious through the country’s dreadful reputation for libel tourism, the UK does not offer absolute protection for free speech.

Starmer, at least, thinks the right to be offensive should be protected.

“The emerging thinking is that it might be sensible to divide and separate cases where there’s a campaign of harassment, [or] cases where there’s a credible and general threat, and prosecute in those sorts of cases, and put in another category communications which are, as it were, merely offensive or grossly offensive,” Starmer said. “[It] doesn’t mean the second category are ring-fenced from prosecution, but it does, I think, enable us to think of that group in a slightly different way.”

So what were these grossly offensive online outbursts, and what happened to the people behind them?

• Matthew Wood was sentenced on Monday to 12 weeks behind bars, after he made jokes on Facebook about a missing five-year-old girl called April Jones, who is sadly presumed dead.
• Azhar Ahmed was sentenced on Tuesday to 240 hours’ community service, because he said nasty things, also on Facebook, about soldiers who had been killed in Afghanistan. Specifically, he said soldiers should “die and go to hell”.
• John Kerlen was sentenced to 80 hours’ unpaid work in May for referring to a local official as a c**t on Twitter.
• Joshua Cryer was given a two-week community order in March for racially abusing the soccer player Stan Collymore over Twitter.
• Liam Stacey was sentenced in March to 56 days in jail for making racist tweets when soccer player Fabrice Muamba collapsed on the field.

All of those cases, with the exception of Stacey’s, were based on Section 127 of the Communications Act 2003, a vaguely-modified version of a law that goes all the way back to a 1935 law about threatening or offending people by mail. Now updated to reflect modern terminology, Section 127(1)(a) of the Act applies to anyone who:

“sends by means of a public electronic communications network a message or other matter that is grossly offensive or of an indecent, obscene or menacing character”

Stacey, on the other hand, went down for racially motivated harassment.

Now, I’m not a lawyer. But I do know the difference between sending someone a direct message or email that threatens or insults them, and making a ‘joke’ to anyone who’ll listen. It’s the same difference that applies when you consider someone yelling in someone else’s face, or standing on a street corner and ranting about them.

Unlike Chambers, who seems to be a genuinely affable chap, none of the others listed above make a very good impression. What they said ranged from the tasteless to downright nasty.

However, I don’t think it should be illegal to be a troll. There are many reasons for this, beyond the whole ‘free speech’ thing (which I consider to be so obvious that I can’t bring myself to formulate a defence for it).

Online is like offline, just online

Here’s the problem. Social media encourage people to speak their minds, and – while they do technically involve ‘publication’ – what is said on them is so often what people would say to their friends in the pub.

What’s more, so many offensive things get said on social media every day that singling out a few people is deeply unfair. The impression the UK courts are giving is that of making examples of people, more than anything else. If they really want to be fair, they need to thoroughly censor Twitter and Facebook, and that would be a disaster. It would lead to many innocent statements also being censored and… it’s just wrong.

It’s good to know Starmer is looking into this properly now. After all, despite the UK’s mania for surveillance, no-one would put up with every private conversation being monitored in the offline world. To have different rules applying online is an anomaly that needs to be eliminated.

Because, if you don’t want to be offended in the online world, you can always just unfollow or block.

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The Series B round was led by current funders Glynn Capital and Charles Schwab (the individual) and included new investor Crosslink Capital.

To date, Pearl.com, which lets anyone pay from $9 to $80 for a one-on-one conversation with a range of verified professionals, has kept a low profile. But with the new cash, it plans to step up its game with a big media and marketing blitz, including a media tour and broadcast TV campaigns.

Quora, which itself raised $61 million in venture funding, similarly connects people with experts (although it doesn’t charge users and takes a crowdsourcing approach).  And vertical-specific sites like HealthTap and RocketLawyer also give people on-demand access to doctors and lawyers online.

But Andy Kurtzig, Pearl.com’s founder and CEO, told me his company wants to be the Amazon.com of the online professional services space.

“The way we look at the market is like retail over the last 15 years,” he said. “Ten years from now, people are going to expect to be able to interact with professionals online and on mobile.”

Expecting the market to be twice that for retail and even more conducive to online transactions, Kurtzig said he thinks there’s room for both vertical-specific and general professional services sites.

In addition to elevating its profile with consumers, the company plans to strengthen its mobile presence (it currently has an iPhone app) and focuses on personalization. For now, the company said users select from a pool of about 10,000 professionals in 700 specialties, including doctors, lawyers, mechanics, veterinarians and home repair pros. The price depends on the urgency of the question and the level of detail users would like in response.

In the future, the company said it plans to build out products organized around lifestyle needs, such as packages for wedding planning, nutrition or the birth of a baby.

To ensure quality across the site, Kurtzig said, the company uses expert peer reviews, works with an advisory board of professors from top schools and requires experts to pass category-specific tests. The company said that, on average, revenue has been growing about 123 percent a year over the last five years.

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Hollande had hinted during his campaign that he would consider changing or reforming Hadopi so that it was less repressive and more cooperative, winning him some fans but straining relationships with some protective industries. But, once he took power, he started a review of the organization — and in August the hint came that it would be scaling back funding for the policing of the web.

Now, however, it seems that Hadopi is fighting back — hard.

In a progress report on Wednesday, Mireille Imbert-Quarratta, who chairs the Committee on Protection of Rights (the group at the center of Hadopi), warned the government that it could not undercut funding for the agency without fundamentally undermining French law.

“Hadopi will take part in an effort to reduce its costs, as with all governments,” she said. “But we are an independent authority, and the Ministry cannot get rid of Hadopi or deprive it of funds, because it has been created by law. This would undermine the separation of powers.”

In fact, her argument went even further, drawing a comparison between an attempt by the French government in 1981 to try and effectively get rid of the death penalty by starving the execution service of money. That loophole failed, she pointed out, although it’s worth remembering that France did enact a law that got rid of the death penalty soon afterwards. But the warning was clear: try to kill off Hadopi by the back door, and you won’t find it easy.

So what next?

Campaigners have long opposed Hadopi, which they say can act as judge and jury over claims of copyright infringement, using unreliable evidence such as IP addresses, and putting the burden of proof onto the accused rather than on the state.

The government’s main practical arguments about Hadopi, meanwhile, are that it is expensive and largely ineffective. While the organization’s own internal reports suggest that 95 percent of the hundreds of thousands of citizens it has contacted have subsequently stopped filesharing, there is plenty of evidence to suggest that it has not been responsible for shifiting P2P use. And, two years after it was implemented, the first cases are only now going to court — potentially making it an extremely expensive deterrent.

It looks like the first real battle may come with those cases: the way the courts go could hand one side or the other a lot of political capital.

Police photograph courtesy Shutterstock user Jbor

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Well, actually that’s slightly inaccurate: the draft law would make search engines pay for reproducing newspapers’ headlines and first paragraphs. So, take those away and the links are fine. Even if nobody will have the faintest idea what they’re linking to.

Google’s North Europe communications chief, Kay Oberbeck, sounded off about the issue this morning in a guest post for a German press agency. That was in German, of course, so I got him to vent in English as well:

“Nobody sees a real reason why this should be implemented,” he said. “It’s really harmful, not just for users who wouldn’t find as much information as they find now, but such a law is also not justified for economic reasons or judicial reasons.”

Oberbeck also pointed out the obvious: that Google send readers to the publishers’ sites. And that anyone who doesn’t want their content to be indexed by Google can just throw a robots.txt file in there. And that publishers make money off Adsense.

But wait, let’s back up. To appreciate the full absurdity of the situation, we should take in a little history.

The German publishing houses, particularly Axel Springer, are very powerful in their country, with relatively strong influence in government circles. As Matthias Spielkamp of the copyright news site iRights put it to me:

“If you look at the U.S., if print houses there want something, they are up against American companies like Google and Yahoo. Here we have local publishers that are enormously powerful and are trying to target U.S. companies. I wouldn’t say it’s anti-American – it’s just that German politicians are much more inclined to protect German publishers’ interests when balancing that with a [foreign] company or industry.”

A couple of years ago, a leaked draft showed what plans the publishing houses were pitching to their friends in the coalition government. The first official draft legislation showed up in April. What it proposed was breathtaking.

The government was calling for a form of ‘ancillary copyright’ to be brought in, that would force companies to pay publishers license fees for using their work in a commercial setting. As in, employers would have to pay up for letting their employees read the news online at work.

German industry bodies were predictably apoplectic, as were opposition parties, and the government beat a hasty retreat. The second draft, which appeared in the last couple of months, drastically narrowed the scope of the legislation, so that it would only apply to search engines.

So now Google is furious for being picked on, when it actually drives traffic to the publishers.

And the publishers aren’t happy either – Anja Pasquay, a spokeswoman for the Federal Association of German Newspaper Publishers (BDZV), told me that the second draft “won’t help”, and her organization would rather see a revival of the first draft.

So, with nobody happy, and with the government looking increasingly isolated, a third draft is rumoured to be in the works. That’s why Google is piping up now.

“An ancillary copyright would mean a massive damage to the German economy. It’s a threat to the freedom of information. And it would leave Germany behind internationally as a place for business,” Oberbeck told me.

“Publishers should be innovate in order to be successful. A compulsory levy for commercial internet users means cross-subsidizing publishers through other industries. This is not a sustainable solution.”

On balance, it’s difficult not to take Google’s side on this one. The whole idea of this kind of ancillary copyright is ridiculous, and it puts the likes of Axel Springer in a very poor light indeed.

It’s not as though Axel Springer isn’t plunging headfirst into the web industry itself – only today, it announced the purchase of an online news and classified portal.

The German publishing giants are big enough to compete in the real world. Sure, it’s tough monetizing free web content. But cooking up hokey and self-defeating new copyright laws is a pretty shabby way to go about it.

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Anton Vickerman was convicted earlier this summer not under copyright law but of “conspiracy to defraud”.

He had profited from selling ads on his SurfTheChannel site, which he reportedly once attempted to sell for £400,000.

Guardian: “He is the first British man to be jailed in the UK for a website that linked to illegal copies of films and TV shows.”

“This case conclusively shows that running a website that deliberately sets out to direct users to illegal copies of films and TV shows will result in a criminal conviction and a long jail sentence,” Kieron Sharp, director-general of the Federation Against Copyright Theft (FACT), which jointly brought the case with the Motion Picture Association of America, says (via Guardian).

It appears the case fell not so much on the existential legal implication of hyperlinking but on whether the accused profited from that activity.

Yet the prosecution under a fraud charge rather than a copyright offence proves controversial to some…

“The way this issue was investigated, prosecuted and the resulting sentence are, deeply concerning, inappropriate and disproportionate given the activities that Anton Vickerman was engaged in,” writes Pirate Party UK leader Laurence Kaye, who does not hold office. “A four-year prison sentence is twice the maximum that could have been handed down if Vickers had been charged with online copyright infringement.”

Two years ago, an English court acquitted another man, Alan Ellis, accused of the same crime. He was charged with making $300,000 in donations from OiNK, a site dedicated to sharing music links.

A third man, Richard O’Dwyer, was not charged by UK police but faces extradition to the U.S., accused of running the separate site TVshack.net, which allegedly linked to sites illegally hosting movies and TV shows. O’Dwyer allegedly made £147,000 in ad sales from the site.

TorrentFreak: “The sentencing today definitely spells trouble for UK-based website owners who operate similar streaming sites.”

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Aurélie Filippetti has commissioned former Canal+ pay-TV CEO Pierre Lescure to lead a wide-ranging and overdue review to update Act II of France’s so-called “cultural exception” – a set of rules for protecting Francophone culture – for the digital age, including the role of Hadopi.

Geeks are reading indications by the new Francois Hollande government as suggesting an axe for the agency, which was formed in October 2012 mandated by government in 2009 to send warning letters to ISP subscribers deemed to by rightsholders to be downloading content without authorisation.

Filipetti, in an interview with La Nouvel Observateur, only goes as far as promising to underfund Hadopi:

“I do not know what will become of this institution, but one thing is clear: Hadopi has not fulfilled its mission of developing legal content offerings.

“In financial terms, €12 million a year and 60 officers, it’s expensive to send a million e-mails.

“Finally, the suspension of internet access seems a disproportionate sanction against the goal. But all this will be considered by the Lescure mission.

“Meanwhile, as part of budgetary efforts, I will ask that Hadopi’s costs are greatly reduced for 2012. I prefer to cut funding for things whose utility is not proven. I will announce in September the details of these budget decisions.

“I cannot decide on the findings of a mission that just started. All stakeholders will be met and will share their views. It is essential to go beyond the framework of Hadopi and consider all mechanisms to adapt to the digital age.”

Filipetti’s views put her in line with Europe’s digital agenda commissioner Neelie Kroes, who is trying to smoothe content licensing regimes to create more legal digital content offerings across the continent and who recently urged French citizens to submit to Lescure’s consultation:

“Combating piracy is not done only by coercive measures. You are all, in fact, aware that I am not a fan of measures that punish individuals or families by cutting off internet access.

“The best way to combat piracy is to encourage the legal supply to satisfy the legitimate expectations of users. . So we must be very ambitious when it comes to creating a regulatory framework that promotes the development of legal offers online.”

Beside Kroes’ efforts, France’s cultural exception update is likely to reduce VAT on digital goods in line with the favourable rates applied to physical cultural products.

France’s Hadopi public agency, created to administer sending of warnings to alleged freeloaders, sent 755,015 first warnings to ISP subscribers in its first 14 months of operation.

Lescure’s review mimics a 2011 report that recommended updating the UK’s intellectual property laws for the digital age.

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