Culver City Gets Around Pesky First Amendment With Terms Of Service

from the read-closely dept

Wed, Aug 30th 2006 1:37pm — Carlo Longino

Last week, we learned that Culver City, California was installing filters on its muni-WiFi network, in an attempt to block content it (or the MPAA) didn't like. Ignoring the facts that filters don't really work and they weren't aware of any real problem until a vendor pointed it out to them with a sales pitch, a local government deciding to put roadblocks up to undesirable, though not illegal, activities (surfing porn or using P2P, in this instance) is more than a little sketchy. But it gets a little more interesting: when logging on to the service, the city's terms of service says users must agree to "waive any First Amendment claims" stemming from the service. That seems like a slightly less nasty way to tell people their First Amendment rights simply don't apply -- but since users are "voluntarily" waiving them, it's somehow okay. Plenty of companies use things like end user license agreements to make it okay for them to do things like install spyware on your computer, and some have argued that EULAs can trump certain laws. But a city using a similar terms of service -- which most users aren't likely to read -- to make an end run around the Constitution seems like a silly measure that's destined to end up in court.

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

39 Comments

If you liked this post, you may also be interested in...

Reader Comments

Subscribe: RSS

View by: Time | Thread

Anonymous Coward, 30 Aug 2006 @ 2:14pm

you also just gave up your first born....
[ link to this | view in thread ]
A. Lloyd Flanagan, 30 Aug 2006 @ 2:18pm

Not a chance in hell
You can't "waive" your First Amendment rights. And the city can't force you to give them up. This would never stand in court.
[ link to this | view in thread ]
Jacob Buck, 30 Aug 2006 @ 2:20pm

The erosion of our rights and civil liberties is the greatest crime of all. If I wanted to live in Natzi Germany, I'd go timetravelling.

Act now and take a responsible role in government, before a civil war is necessary.
[ link to this | view in thread ]
Jacob Buck, 30 Aug 2006 @ 2:22pm

Re: Not a chance in hell
You can waive any right you have. If you enter into an agreement knowing that your first amendment rights don't apply, then they don't.
[ link to this | view in thread ]
Anonymous Coward, 30 Aug 2006 @ 2:22pm

I think you'd have a hard time arguing that pirating movies is an expression of your right to free speech.
[ link to this | view in thread ]
Neum, 30 Aug 2006 @ 2:25pm

No, but...
Posting and downloading porn/art photos could be...
[ link to this | view in thread ]
Yet another Anonymous Coward (profile), 30 Aug 2006 @ 2:31pm

And this is north of the Orange Wall
Culver City is within LA County, which is deep blue. (As opposed to Orange County which is deep red.) Yet, with all those liberals around, this erosion of rights continues.

I think to cost of the network is too high - and the LA area has other commercial systems available w/o these blocks.
[ link to this | view in thread ]
Shinanigans, 30 Aug 2006 @ 2:33pm

Natzi Germany?
Ok. If you can time travel, I want to see that.
But you are right, the liberals are erroding away our foundation that was set up for us here in America, and a large amount of it happens right there in Southern California through the media and film industry. Thank goodness that some liberals like their porn though, huh?!
[ link to this | view in thread ]
James P. Burns, 30 Aug 2006 @ 2:35pm

Re:
From where did you get downloading pirated movies? The article makes no mention of it... I think that the biggest issue will be the fact that the municipal district is using your tax dollars to limit your freedoms. While an individual or corporation has every right to impose censorship, a governmental entity certainly has no such right.
[ link to this | view in thread ]
Sailorette, 30 Aug 2006 @ 2:37pm

Depends on who's paying....
Are the folks in town being forced to use the service? Is there no other option, and the Government is forcing them to all use free internet without reading the TOS? Do some people get to use the free service for these things when others don't?

No?

Then it's not an "errosion of rights and civil liberties."

It is a pretty foolish choice that will cost them a lot of money to defend, but you may as well say that our rights and civil liberties are erroded by having to have a permit to protest.
[ link to this | view in thread ]
Strofcon, 30 Aug 2006 @ 2:39pm

Let's review..
The rights given to U.S. citizens in the Constitution are described as being "God-given" and "inalienable."
First let's define "inalienable"...
Inalienable: not alienable; not transferable to another or capable of being repudiated.
First, if you beileve they are God-given, you're a startlingly ignorant individual to believe that you could simply "waive" a right given to you by God Himself.

However, from a more "politically correct" and non-theistic approach, the very definition of "inalienable" immediately rules out the possibility of waiving or "giving up" any inalienable rights. :-) Simple logic, so often overlooked.
[ link to this | view in thread ]
Jacob Buck, 30 Aug 2006 @ 2:42pm

Re: Depends on who's paying....
The point is that you should always have be covered by your rights, no matter what you are doing. Look at the criminals who get off because they were improperly arrested, or who break into someone else's home and hurt themselves and then sue the homeowner. If a criminal is covered in those situations, I should be covered while surfing the internet on a service that MY TAXES PAY FOR.
[ link to this | view in thread ]
Jacob Buck, 30 Aug 2006 @ 2:44pm

Re: Let's review..
If you really want to get into it God supposedly gave us the freedom of choice, and we can do what the hell we want to with our rights.
[ link to this | view in thread ]
Shinanigans, 30 Aug 2006 @ 2:47pm

Hey, can't the reviewer of these posts identified as "potential SPAM" please review them faster?!!!
[ link to this | view in thread ]
Simpleton, 30 Aug 2006 @ 2:58pm

Re: Let's review..
Nit-pick alert.

That was the Declaration of Independence and at the time the statement didn't include slaves in that whole inalienable rights thing. So there was a flaw in the logic of that right off the bat.

And you absolutely can give up your rights. Go ahead and commit a felony and see what rights they allow you.
[ link to this | view in thread ]
Simpleton, 30 Aug 2006 @ 3:01pm

Re: Re: Let's review..
But I still think that a government body in the US that requires you to give up your 1st amendment rights is absolutely absurd and seems like political suicide if it was signed off by a government official and not a private sector entity.
[ link to this | view in thread ]
Anonymous Coward, 30 Aug 2006 @ 3:15pm

Re: Re:
Amen.
[ link to this | view in thread ]
Saishu Heiki, 30 Aug 2006 @ 3:18pm

Waiving Rights
When you join the US military, you waive several rights that are "guaranteed" to you as a US citizen. I am a veteran, and I had less rights while I was on active duty than some prisoners in the country.

Since all military service is voluntary, it is essentially the same thing as Culver City. With the notable exception that the swearing in makes you quite aware of the event.

That is not to say that I agree with the city doing it. I can't think of anyone off the top of my head that actually reads the EULA for anything. And there have EULA that have been struck down for overstepping their authority.

I don't see this holding up.
[ link to this | view in thread ]
Drunken Philosopher, 30 Aug 2006 @ 3:28pm

Who's paying, again?
This isn't a "free" service, this is a "taxpayer funded" service. How that taxpayer-funded service can somehow be arbitrarily excluded from First Amendment guarantees and protections defies common(?) sense.
[ link to this | view in thread ]
Shinanigans, 30 Aug 2006 @ 3:32pm

Culver Chity, . . .
I don't think I care much for this governing body.
I certainly will not stop by there on any of my visits.
[ link to this | view in thread ]
Anonymous Coward, 30 Aug 2006 @ 3:53pm

Re: Who's paying, again?
you mean to tell me that there are sober philosophers?
[ link to this | view in thread ]
flamsmark, 30 Aug 2006 @ 4:02pm

Re: Re: Not a chance in hell
no; there are rights that you cannot waive.

for instance: you cannot waive your right to life against another. no matter what contract you sign, someone who ends your life is commiting murder.
[ link to this | view in thread ]
flamsmark (profile), 30 Aug 2006 @ 4:07pm

Re: Depends on who's paying....
yes, in a manner of speaking. their local taxes pay for the service. in essence, the residents have already 'bought' it. imposing this additional [and i think i'm on pretty strong ground in saying] anti-constitutional term on them to use it, therefore *is* an attack on a right.

you may as well say that our rights and civil liberties are erroded by having to have a permit to protest.

many do. in the uk, we call them 'liberals'.
[ link to this | view in thread ]
Scott, 30 Aug 2006 @ 4:26pm

Predictable
I've been sick to my stomach reading comments from people so gung ho about muni wireless for months now. We need less government, not more. People are so naive. Here's how it works.

1 Government gives "free" internet service. Paid for by your taxes, whether you use it or not.

2 Private providers are forced out of business.

3 Government now has total control over the internet, and begins to censor and block sites at will. The internet, the one source of information the government and mainstream media can't control, ceases to exist.

4 Government's hold on power and control over us becomes much stronger

The only mistake Culver city has made here is in revealing their hand too quickly.

See, in a free market, everyone can choose something different. I like baseball, you like football, etc. No one pays for what they don't want, and there are tons of choices.

In government provided "services", there can be only one option, chosen by majority rule. Therefore all minority choices are denied.

Making the choice itself becomes a bloody battle, and government spurs both sides on to fight each other. This distracts us from the all powerful government hand, and gives the people the illusion of control. "Tommy, do you want to clean your room, or clean the garage tonight?" See, there's no real choice.

Once the majority chooses, this choice is written into law and will not change again for decades, long after technology changes have made it irrelevant. In that case, technology must be hamstrung instead.

The truly bad people figure out ways around the law anyway, so the government makes the law more and more complicated. In this case we could have a battle over every single site the government wants to restrict. Again, this distracts us and wastes energy.

Once the choice is made, everyone is forced to go along. You have to pay whether you use it or not. Sometimes you're even forced to use the service against your wishes.

Creeping Socialism (of which Fascism is one variety) at its worst. But it's for the children, or stops racism, or promotes social justice, or whatever propaganda phrases the socialists use these days.
[ link to this | view in thread ]
Mike TheZorch Haney, 30 Aug 2006 @ 4:33pm

Re: Let's review..
If it went to the Supreme Court they'd declare this TOS document Unconstitutional. You are 100% correct, the preample of the Constitution clearly states that the rights in the Bill of Right cannot be taken away by anyone for any reason. That's what "inalienable" means.
[ link to this | view in thread ]
Kyros, 30 Aug 2006 @ 4:47pm

Wow...over reacting
Liberals, conservatives, Nazi's and Anarchy aside....First Amendment rights stand to all US citizens and cannot be waived, taken, revoked or otherwise with two exceptions. Since if either of those exceptions were to happen, you wouldn't be legally allowed to use the wifi anyways, then it doesn't matter. Personally, i think we just need to slap the crap out of the city council and tell them to use their brains instead of their freaking grubby overly-politically-correct hands. And the military gets exceptions...(why, i do not know, but i really doubt a judge is going to rule against the entire military, and plus the military does keep our asses safe, so, do you really want to quibble with them over a few rights?)
[ link to this | view in thread ]
Anonymous Coward, 30 Aug 2006 @ 5:45pm

Re: Predictable
No one pays for what they don't want, and there are tons of choices.

does this mean i don't have to pay my taxes?
[ link to this | view in thread ]
Aaron Moss, 30 Aug 2006 @ 6:07pm

Give up rights?
Can't you give up your 5th amendment right to Self Incrimination or some such?
[ link to this | view in thread ]
Aaron *Brother Head* Moss, 30 Aug 2006 @ 6:16pm

Re: Give up rights?
Quickly to add on to my own post.... Not that I'm supporting what Culver city is doing or anything.

And to play Devil's Adovate, just because you don't read the ULA doesn't mean it doesn't apply to you.

"I didn't read it" wouldn't hold up if you signed a contract then changed your mind.
[ link to this | view in thread ]
shableep, 30 Aug 2006 @ 10:26pm

It is their Internet...
It's basically like driving someone else's car. They say "you can't drive it thru mud or on dirt roads" and you'd respect that.

I agree with their intent to make sure their Internet is used more effectively for knowledge and communication. But I definitely have to disagree with the actions of their efforts in doing so. The stability of our government has everything to do with the first amendment. So, to use those terms and make it look disposable is just irresponsible. I'm hoping they just meant that you don't have access to everything you want. Which sounds okay to me.

If they meant giving up your rights literally, they could filter and edit everything you type on their connection, to a friend or on a blog. That gives them a little too much power, which would then motivate an anti-trust suite. Crazy lawyers.
[ link to this | view in thread ]
Anonymous Coward, 30 Aug 2006 @ 10:33pm

give up rights for any govt program
next thing you know, the government will be asking you to give up your rights when applying for student loans.... or that other pesky provledge (read "non-right") applying for a driver's license. go to www.lp.org
[ link to this | view in thread ]
twgiv, 30 Aug 2006 @ 10:49pm

Re: Not a chance in hell
Correct! Waiving your constitutional rights to free speech would imply you could also waive your constitutional right to be taxed
[ link to this | view in thread ]
Robert, 31 Aug 2006 @ 4:17am

I give up what?
So if I understand this correctly, I give up my rights to petition the government, to establish a religion and to peaceably assemble? The first amendment isn't just about "freedom of speech".

Of course I don't see what everyone is crying about. We have already been forced to surrender our second and fourth amendment rights. Of course, the first is everyone's favorite and that is why they are upset.
[ link to this | view in thread ]
DoxAvg, 31 Aug 2006 @ 5:30am

It's inevitable
This is the strongest argument against muni WiFi that I've seen. We had a great... discussion... about it on this TechDirt story where I asserted that inevitably, the entrenched powers (which I characterized as The Man) would exert political influence to start limiting what you could do with your tax-funded broadband. And since there's subsidized broadband in Culver city, I don't see Verizon installing FiOS there anytime soon.

The ACs that characterized me as "A conspiracy theorist who just wants to point a finger." can feel free to recant now.
[ link to this | view in thread ]
Aaron, 31 Aug 2006 @ 7:08am

Re: I give up what?
The 2nd Amendment is always up for debate, but it's clear as day that a person can voluntarily give up thier 4th Amendment rights to an officer of the law, so I don't quite get why doing the same with the 1st is any different. You can refuse a search if a policeman asks, and you can also refuse to use the city's WiFi and go with a private carrier.

This is only an issue if it becomes one of those unwritten "rights" people think they have, to have free (or discounted) city-provided internet access.
[ link to this | view in thread ]
Celes, 31 Aug 2006 @ 7:48am

Re: Re: Not a chance in hell
The 16th Amendment reads:

The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.

It's not a right of a citizen to pay income tax, it's a right of Congress to create and collect income tax. Unless Congress waives its right, we're out of luck.
[ link to this | view in thread ]
Celes, 31 Aug 2006 @ 7:56am

Re: Give up rights?
Well, the 5th Amendment actually bestows quite a few rights, but I believe this is the one you're talking about: "nor shall be compelled in any criminal case to be a witness against himself".

The key word is "compelled". They can't *force* you to incriminate yourself, and that right is not given up or violated if you do it voluntarily.
[ link to this | view in thread ]
WFIGUY, 31 Aug 2006 @ 9:04am

Re: Depends on who's paying....
I think that a permit to protest is an erosion. The constitution says we have a right to assemble, not a right to assemble as long as the government "permits" it.
[ link to this | view in thread ]
fuckculvercityandsony, 31 Aug 2006 @ 6:00pm

fuckculvercityandsony
The term inalienable rights (or unalienable rights) refers to a set of human rights that are said to be absolute, not awarded by human power, not transferable to another power, and incapable of repudiation. Several different sets of inalienable rights have been suggested by philosophers and politicians. Inalienable rights are defined as natural rights, but natural rights are not required by definition to be inalienable.
[ link to this | view in thread ]