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February 21, 2008
WikiConstitution: Evolving the Law to Ensure Civil Liberty and Free Expression in the Internet Age
Some Constitutional scholars consider the US Constitution to be a living, breathing document for the ages, capable of the flexibility needed to evolve with society and technology over many generations. I count myself among this group. If only the framers of the Constitution could see how much more necessary the conception of the Living Constitution will become in an Internet-enabled society. Technology and society are moving more quickly than ever imaginable, and if we are to remain a beacon of liberty, we have to make sure that our rights and liberties are able to evolve and keep pace.
Sometimes, however, the jurists and the laws cannot keep pace with the technology and social changes. At these times, we – the Internet innovators and entrepreneurs and advocates – must be vigilant to make sure that the laws and the Constitution are suitable to advance the guiding principles of civil liberty.
A case in point
In case folks missed it, there was an event last week that could prove to be a pretty significant event at the intersection of the Internet the First Amendment to the US Constitution. A Federal District judge in San Francisco on Friday ordered the disabling of Wikileaks.org, a Website devoted to disclosing confidential information. Go ahead, try the link, I dare you, it doesn’t work. Let’s just hope trying to link to it didn’t put you on some government watchlist.
Wikileaks is (or is it “was”) a site where people could post “leaked” documents with an eye towards curbing unethical behavior by corporations and government. The judge granted a permanent injunction disabling the www.wikileaks.org domain name. Now, in the global and ubiquitous Internet, I’m not exactly sure how a Federal judge thinks he can actually stop Internet users from accessing the site, using a different IP address or simply a foreign domain.
Frankly, I’m skeptical that this injunction will withstand appellate scrutiny. The existence of this dispute, however, makes a couple things clear to me. First of all, with the power of the Internet to make everyone a publisher and distributor of content, we haven’t seen anything yet with regard to government efforts to curb dissemination of information. The same free expression issues that have been debated for decades, even centuries, with regard to prior media and information conduits, are now going to be debated in the context of the greatest publication and distribution mechanism humanity has ever seen.
It’s an interesting time to be working at the intersection of the Internet and the law. So much about Internet law and policy is still unwritten. This is one of the main reasons that I left the world of civil rights/liberties work ten years ago, to pursue a career as an Internet attorney. Never in our lifetime, have lawyers had such a rare opportunity to create the laws and policies to shape the future, as we have at this moment with the evolution of the Internet, communications and digital technology.
But, sometimes, even our most learned judges, scholars and policymakers are going to get it wrong. Let’s hope, that none of our mistakes are irreversible and that we get it a little less wrong each time we try. And let’s work to ensure that the Internet is a tool to promote humanity liberty and dignity and the freer flow of information, and not to curb these social goods.
And finally, the bottom-line practical result is probably that the site will now become even more popular than ever, confirming that, in the new Internet-enabled world, there is no such thing as bad publicity.
Tags: First Amendment, Wikileaks.org, Jonathan Askin
Posted by jonathan.askin at February 21, 2008 01:21 PM
Comments
Welcome to the blog world.
I look forward to your blog.
Posted by: Terry Finley at February 23, 2008 03:50 PM
so who's askin askin and don't askin me :-)
and hmmm
g-oh
Posted by: geo at February 25, 2008 04:46 PM