Boarding Pass Reseacher's Lawyer Analyzes Takedown Notice

Christopher Soghoian, the Indiana University security researcher who was investigated by the FBI, was represented by Jennifer Granick, who heads Stanford's Center for Internet and Society and who pens a bi-weekly column for Wired
News. I asked her today about the legality of the takedown letter that was used to take down Soghoian's site two days after it was posted.

Prior to the Digital Millennium Copyright Act and in the early days of the internet, and you were a host and someone wrote you a letter saying that something on one of your users' websites was illegal for some reason, you didn't really know what your liability was for being a contributory copyright infringer or aiding or abetting this illegal scheme. And you didn't know if you took it down if you would be liable to your user for interfering with their business -- you just didn't know.

What we did then was pass laws -- the first one was for defamation, saying that ISPs and hosts were not liable for defamation by third party. Then copyright became big, and the DMCA was passed with the whole notice and takedown procedures, where if hosts follow the rules, they avoid trouble.

Well, we don't have any rules about this (takedown of a site based on national security concerns) so hosts are in that territory where they don't know. And they don't have any dog in this fight. So if they had to think who would they rather have pissed off at them, the Department of Homeland Security or Chris -- I think they know which side their bread is buttered on.

I can't blame them for being responsive to something like this. That being said, I don't think anything illegal about his boarding pass generator.

You could go to a judge and order Chris or DreamHost to take it down. But that would be a really hard case, as long as he isn't aiding and abetting anybody. Aiding and abetting requires you to intend to help a bad guy and Chris has no such intent. He's not breaking the law.

This would fall pretty squarely in the realm of free speech and you can't get prior restraint on speech.