No free speech for animal rights Web sites A British medical research firm hammers its online opponents, courtesy of the Digital Millennium Copyright Act.
By Katharine Mieszkowski
Aug. 31, 2001 | On Thursday, EnviroLink Network, a Pittsburgh-based nonprofit Internet service provider, took offline two Web sites belonging to the animal-rights activist group Stop Huntingdon Animal Cruelty. The action came in response to a letter sent to the ISP earlier in the week by Huntingdon Life Sciences, a British medical research firm. Citing the Digital Millennium Copyright Act (DMCA), Huntingdon accused the activists of violating its copyright. Although no charges have yet been filed, under the terms of the DMCA, Envirolink was forced to remove the sites to avoid potential legal liability.
"It's very clear that Huntingdon Life Sciences just wants to shut them up," says Josh Knauer, the founder of Envirolink, which provides free Web hosting to nonprofits. The animal-rights group's U.S. site has been replaced with a single page explaining the conflict, while the main site redirects to another ISP, allowing it to remain up for the moment. A notice on the Stop Huntingdon Animal Cruelty Web site taunts: "If you read this HLS realize that you will never shut us up and we are as determined to destroy you now as we were in November 1999 when this campaign began and destroy you we will." Calls to legal counsel for Huntingdon Life Sciences were not returned.
Huntingdon's response is hardly the first legal skirmish between Huntingdon and its critics; most recently, the company brought suit against Stop Huntingdon Animal Cruelty and other animal-rights groups last April using racketeering law to fight the activist's allegedly radical tactics, including "violence, intimidation and harassment"; the law suit is still pending.
For several years, animal-rights activists have protested Huntingdon Life Sciences, using tactics that include targeting individual investors and companies that do business with the research lab, such as the Bank of New York. One avenue of that pressure to divest has been through Web sites such as BankofNYkills.com.
Earlier this month, the Bank of New York notified EnviroLink that it believed that the site violated its copyrights. EnviroLink took down the site. "Under the DMCA, a corporation contacts an ISP to let them know that a site that they host is violating their copyright," explains Knauer. "To protect ourselves from threat of lawsuit, we have to shut down the Web site, whether we think the claim is valid or not."
If the client whose Web site has been shut down provides a counter-notification swearing under penalty of perjury that it believes the site not to be a copyright violation, then the site can be reinstated by the ISP, such as Envirolink, but not before 10 working days and no later than 14 working days have passed. In the case of BankofNYkills.com, Stop Huntingdon Animal Cruelty has not yet sent a counter-notification. The site remains down.
Now, apparently, in the wake of the Bank of New York's successful action, Huntingdon Life Sciences has followed the same course, sending Envirolink a similar notification about the two Web sites removed today. According to EnviroLink, Huntingdon's request did not specify individual documents on the sites that allegedly violated their copyright, but objected to the two sites in their entirety. Bill Strazza, an attorney in Union City, N.J., representing Stop Huntingdon Animal Cruelty, sees the use of the DMCA to preemptively shut down the sites as an infringement on free speech: "On simple notification they're (the ISP) compelled to take a site down or risk liability. It puts hosts in a very difficult position which could ultimately have a chilling effect on free speech."
The 10-day window after the host receives a counter-notification before the site goes back up is particularly troubling; why couldn't the ISP simply restore the site right away and let the two parties work out the issue in court? "There is still a 10 day stomping on the Constitution after a simple notification," says Strazza.
One reason for the window is that it gives the complainant time to get a legal case together, if the choice is made to pursue legal action, explains Jonathan Zittrain, co-director at the Beckman Center for Internet & Society at Harvard Law School. "It's a ridiculous balancing act. It's clearly Congress trying to strike a compromise: Once the cat is out of the bag on the Internet, it's all over, on the other hand, this idea that prior restraint of speech [is OK] because someone sent a letter sounds pretty bad."
EnviroLink chose to cut off service for the two Stop Huntingdon Animal Cruelty sites rather than risk liability for leaving them up. A costly lawsuit could jeopardize the Web sites for 500 other organizations that Envirolink hosts for free, according to Knauer.
To Knauer, the host caught in the middle, the DMCA is a major threat, not to his organization, but to the nonprofits it serves: "The DMCA is the next major assault on nonprofit organizations, specifically those with few resources. Can they defend themselves and how well can they defend themselves? We have to make a stance in some way for free speech." Late Thursday afternoon, the conflict took a new turn; on the single remaining page of the SHACUSA Web site, the activists posted a call-to-arms to their supporters, urging them to contact Huntingdon's attorney Michael Socarras, via phone and e-mail. The call to action was apparently heeded: During the afternoon, Socarras' voicemail box was full, and he didn't return calls requesting comment about the dispute left with his assistant. Shortly afterwards, EnviroLink received a letter from the attorney accusing the site of using the ISP to initiate "a campaign of personal harassment and invasion of privacy directed against me" and requesting "that you immediately take all necessary steps to end that misuse of your hosting services."
Knauer said the ISP saw no reason to heed the request: "We see no legal precedent that would compel us to take action at this time," adding, "It's clear that Huntingdon Life Sciences is not going to be happy until SHAC is completely silenced."