Friday, April 18, 2014

xkcd is wrong about "free speech"

The usually awesome XKCD cartoon opines that "the right to free speech means only that the government cannot arrest you for what you say". It is profoundly wrong. The cartoon only applies to "First Amendment Rights", where confused people think the government protects their Twitter posts. But it doesn't apply to censorship and other threats against people freely speaking.

The First Amendment doesn't apply to private companies. It says that "Congress shall pass no law abridging freedom of speech". This wording is important. It doesn't say that congress shall pass laws protecting our speech, but that congress shall not abridge it. "Free speech" is not a right given to us by government. Instead, "free speech" is a right we have, regardless of government.

In other words, if Twitter wants to restrict what you tweet, government can't stop them. If Facebook wants to censors what you post, Congress can't get involved.

But free speech isn't always about government. The forces that want to restrict your speech include private actors. For example, cartoonists around the world draw pictures of Jesus and Buddha, but do not draw pictures of Mohamed, because they are afraid of being murdered by Islamic fundamentalists. South Park depicted Jesus as addicted to Internet porn, and Buddha with a cocaine habit, but the censors forced them to cover up a totally innocuous picture of Mohamed. It's a free-speech issue, but not one that involves government.

In oppressive countries like Russia, the threats to speech rarely come directly from the government. It's not the police arresting people for speech. Instead, it's the local young thugs beating up journalists, with the police looking the other way.

In the United States, society has gone overboard on "political correctness" that silences speech. A good example in cybersec community is when the "Ada Initiative" got that talk canceled at "BSidesSF" last year, for obscure reasons that come down to the Ada Initiative hating that speech. That sort of thing is very much a "free speech" issue, even though the official government wasn't involved. Any time those in a position of power restrict speech, purely for its political content, this impinges on our values of "free speech".

The "responsible-disclosure" debate is about "free-speech", where some try to use the hammer of "ethical behavior" to control speech. Last night I tweeted a line of code from the OpenSSL source code that demonstrates a hilariously funny bug. I was attacked for my speech from OpenSSL defenders who want me to quietly submit bug patches rather than making OpenSSL look bad on Twitter.

That's why so many of us oppose the idea of "responsible-disclosure" -- the principle of "free-speech" means "free-disclosure". If you've found a vulnerability, keep it secret, sell it, notify the vendor, notify the press, do whatever the heck you want to do with it. Only "free-disclosure" advances security -- "responsible" disclosure that tries to control the process holds back security.

Such debates do circle back to government. For example, in the Andrew 'weev' Auernheimer case, the government cited Andrew's behavior (notifying the press) as an example of irresponsible behavior, because it didn't fit within the white-hat security norms of "responsible-disclosure". Andrew was sent to jail for speech that embarrassed the powerful -- and it was your anti-free-speech arguments of "responsible-disclosure" that helped put him there.

Certainly, it's technically inaccurate to cite "First Amendment" rights universally, as that's only a restriction on government. But the "free speech" is distinct: you can certainly cite your "right to free speech" in cases that have nothing to do with government.

Update: I shoulda just started this post by citing the Wikipedia entry on rights: "Rights are legal, social, or ethical principles of freedom". In other words, it's perfectly valid to use the word "right" in contexts other than "legal".

Update: I mention South Park because the XKCD mentions "when your show gets canceled". If your show gets canceled because nobody watches it, then that's certainly not a free-speech issue. But, when your show gets canceled because of threats from Islamists, then it certainly is a free-speech issue.


Unknown said...
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Anonymous said...

So what precisely are you saying should be prohibited, and how?

Anonymous said...

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teh_painter said...

Yeah his message was incoherent...just a bunch of buzzwords linked together. Bonus irony points if this post gets censored

Anonymous said...

Dear Errata Security, actually in Russia threats to free speech do come from the government directly in the form of Roskomnadzor. This agency issues censorship orders against media and Internet websites. During Crimea crisis a number of Russian news agencies were blocked this way, such as

Scott said...

"South Park depicted Jesus as addicted to Internet porn, and Buddha with a cocaine habit, but the censors forced them to cover up a totally innocuous picture of Mohamed"

This isn't a correct interpretation of censorship, though. The creators of South Park have a contractual agreement with their distributors that give Viacom the right to refuse any of the work presented to them. That's not a freedom-of-speech issue, that's contractual law.

Trey Parker and Matt Stone are quite able to go ahead and create some other cartoon property with all the depictions of Muhammad that they want and release it via the web on servers that they host. The point of the XKCD strip in question is that no-one else is required to give them that platform as part of their free speech rights.

"Last night I tweeted a line of code from the OpenSSL source code that demonstrates a hilariously funny bug. I was attacked for my speech from OpenSSL defenders who want me to quietly submit bug patches rather than making OpenSSL look bad on Twitter."

Were they able to make you take the post down? Did Twitter remove the post in question? Even if Twitter _did_ do that, they would still be within their rights to do so. You gave them that right when you agreed to their terms-of-service.

Are the OpenSSL folks able to prevent you from hosting a blog where you shout out the vulnerabilities to the world? If they can get a judge to shut down your blog, then potentially, yes, you have a 1st amendment freedom of speech issue. But even then we've acknowledged that not all forms of speech are protected in such a way. Yelling "Fire!" in a crowded movie house is the most often used example.

Anonymous said...

Most of what you cite has nothing at all to do with freedom of speech and everything to do with economics of speech.

Anyone can say/write/draw anything they want using their own resources.

When using resources belonging to others, those others have the right and obligation to stipulate what is acceptable.


Unknown said...

I think you are mostly confusing the right to free speech with some "right to *publicized* speech", or a "right to be heard".

Does anyone really think we have such a right? I don't.

Duncan Mitchel said...

I think you're wrong, Unknown.

I wish that your rhetorical question were a straw man. Some people do think they have a right to be heard, though they are usually happy to deny that right to others; it's summed up as "Free speech for me but not for thee." But that's not what this is about. Under the First Amendment I do have the right to try to make myself heard. That right isn't infringed if a given publisher declines to publish my writing, as long as I can publish and distribute it myself. A century ago it was common for printers to refuse to publish material, even at the author's expense, for fear of government prosecution, which could lead to fines, the seizure of the press, etc. ("Freedom of the press" was really just a slogan in the US until roughly the 1970s, It seems to me that neither the person who wrote this post nor the people criticizing it know much about the history of the First Amendment and government suppression in this country.)

If Twitter locks my account, I may be pissed off, but they are within their rights as a "press," loosely defined, to refuse to publish me. Alternatives to Twitter may be hard to find, but it's up to me to find a way around it. Luckily, in the US, there are several blog platforms and other social media that give me alternative routes to try to be heard. But if I don't have the right to make myself heard, then I don't have freedom of expression, even under the First Amendment. That doesn't mean anyone has to listen to me, but I must be able to speak or write, to publicize my opinions, or the First Amendment is a dead letter.

Kafeaulait said...

As I see it, rights aren't god-given privileges that we enjoy unless encroached upon. Rather, rights are the areas of permissibility carved out after certain rules have been set up and agreed upon.

Imagine a world with only 1 person. Nothing stops that person from doing what they want, i.e. they are infinitely free. Add one more person into that world and now there are restrictions, some natural and some social. Two persons cannot occupy the same space; the existence of another person at the very least prohibits another from that "right". It makes no sense to say whether person A or B has the right to occupy every space in the world, even though that was true in a different setting. A society can just as well choose to live with maximal freedom (even the freedom to transgress on others' livelihood), and the only price they have to pay is minimal security.

If a right is something you can choose to live with or without, can it really also be the case that we ought to have it regardless of government?

aoeu256 said...
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麥當勞 said...
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麥當勞 said...

This article is classic. It should be permanently archived in a time machine.