Legally such gag orders can be enforced. Twitter, for example, told reporters that “There are tweets that we do remove, such as illegal tweets,” though the company said they “strive not to remove tweets on the basis of their content.” A tweet that flouts a super-injunction would be illegal in the U.K., and while a U.K. court’s power doesn’t extend into U.S. territory, Twitter will likely comply if it ever wants to do business in the U.K. For its part, Facebook has a London office with over 50 employees and many business interests in the country, which means that a U.K. court has plenty of pressure points to get it to comply.
Bottom line: If a company has persons, assets, or business interests in a country, and that company isn’t willing to lose those persona, assets, or business interests, then that country’s laws can be enforced against it. This likely means that if notified of offending tweets, Twitter may be forced to take them down a lot like YouTube takes down videos that are flagged as infringing copyright. The more interesting question is whether tweets will be taken down just for U.K. visitors or for everyone.
That said, practically it’s impossible to enforce a super-injunction on social media. Supposing that Twitter doesn’t take down tweets for non-U.K. users, persons in the U.K. could easily spoof their location to get access to an uncensored feed. Even if specific tweets were completely wiped out, the information would likely spread through retweets and reposts on thousands of accounts, making it impossible for any court to control short of shutting out the service. And even if that doomsday scenario came to pass, the net is a very big place and the information could be posted just about anywhere, which means that a super-injunction can’t achieve its intended effect.
This Isn’t Going to Be the Last Time
Controlling information is possible, but only at the margin and at great cost. As information technology advances, that margin at which information can be controlled gets thinner and thinner, and the costs of doing so become greater and greater. So given the apparent futility of keeping facts secret, you’d think officials would look to find better ways of confronting the new reality. That’s unfortunately not the case.
“Why are we assuming that the world of communication, developing as rapidly as it is, can never be brought under control by other technological developments?” asked the head of the U.K.’s judiciary yesterday. “I am not giving up on the possibility that people who in effect peddle lies about others through modern technology may one day be brought under control.”
And we should not forget to look in the mirror. While the U.S. has some of the world’s most extensive free speech and press liberties, it seems every week there is a new proposal to control what information can be published online. For example:
- Earlier this month Rep. Ed Markey proposed legislation that would force online services to create an “Eraser Button” to allow minors to wipe out embarrassing facts they placed online and later come to regret. An impractical yet incredibly expensive proposition. There’s no pulling back that keg-stand photo once it’s on the net.
- Last week Sen. Patrick Leahy introduced the PROTECT IP Act, which was widely panned in the blogosphere. Among other things, it would require search engines like Google to remove from their indexes sites found by a court to be dedicated to copyright or trademark infringement.
- And let’s not forget the continuing Department of Justice investigation of WikiLeaks and the unsuccessful attempts made to suppress leaked documents from the group.
- Even Canada got in the action last month when it made clear to citizens that Tweeting or posting to Facebook about election results before all polls were closed was illegal.
While we may be sympathetic to the reasons why some want to control information, the fact is that it’s becoming increasingly difficult and costly, if not impossible, to do. But we should know by now that the answer to bad speech is not to censor, but to promote good speech. More speech is how we get truth and accountability. And it’s not just celebrity sex scandals that are being suppressed, but also illegal toxic-waste dumping by multinationals, and even horrendous accounts of ████████████ and ██████████.