[Infowarrior] - Scribblings of the Czar of the Ministry of Information

[Richard Forno]

Scribblings of the Czar of the Ministry of Information
Marla Singer on 11/23/2009 19:22 -0500

http://www.zerohedge.com/article/scribblings-czar-ministry-information

The Office of Information and Regulatory Affairs was, in an irony that  
will quickly become apparent, created by the Paperwork Reduction Act  
of 1980.  Last month, after some delay by meddling and petty Senators  
with the temerity to express concern over the nominee's political  
views, Cass R. Sunstein was confirmed by the Senate as OIRA's head  
making him the current administration's latest "Czar."  20 days later  
Mr. Sunstein's book, "On Rumors: How Falsehoods Spread, Why We Believe  
Them, What Can Be Done," hit the stands.  Good timing probably.   
Sunstein probably wasn't expecting to receive a confirmable  
appointment when he first started work on the piece- though at 88  
pages of grade-school level prose he may well have begun writing quite  
a bit after the Wall Street Journal leaked his appointment in January  
of this year.  Perhaps as recently as last month, actually.  One would  
expect that a more public airing of the prose in Sunstein's work,  
which seems almost singularly focused on shutting up "members of the  
Republican Party spread[ing] rumors about the appointee of a  
Democratic president," (have anyone in particular in mind?) without  
causing a constitutional crisis might have caused problems.

Normally, such goings on would slip thankfully under the radar at Zero  
Hedge.  Unfortunately, a newly emerging posture with respect to free  
speech evident in the stance of the United States seems to have  
erected itself since the current administration's swearing(s) in and,  
hence, such matters attract our attention.  Particularly troubling are  
the following passages:

"On the Internet in particular, people might have a right to "notice  
and take down."  Under this approach, modeled on the copyright  
provisions of the Digital Millennium Copyright Act, those who run  
websites would be obliged to take down falsehoods upon notice.  It is  
true that this approach might be burdensome.  It is also true that  
because of the nature of the Internet, notice and takedown cannot  
provide a complete solution.  But if it is taken down, it will not be  
in quite so many places, and at least the victim of the falsehood will  
be able to say that it was taken down."

And:

"What would be so terrible about a requirement that people take down  
libelous material after they are given notice that it is libelous- at  
least if they do not have reason to believe that the material is  
accurate or at least supported by evidence?"

We cannot think of a worse model for "falsehood" regulation than the  
Digital Millennium Copyright Act, which effectively enables anyone  
with an internet connection to bluff U.S. (and many foreign) internet  
service providers into forcibly removing content that fails to possess  
even a passing resemblance to infringement.  Zero Hedge, of course,  
experienced this first-hand more than once in the days before our  
technological exodus from the gentle regulatory ministrations of the  
United States.

In addition, answering the question "what would be so terrible" posed  
by Sunstein's second passage is quite simple.  Shifting the burden of  
proof to the content provider "on notice," is a major shift from  
current practice (outside of the DMCA) and presents a difficult  
logical problem.  "Prove the content is not libelous," is rather a  
troublesome contention.  Since when do we reverse the burden of proof  
on content providers and require of them positive certifications of  
the non-libelous nature of their prose in order to be blessed with the  
right to publish?  Who exactly will determine what constitutes  
"accurate or at least supported by evidence"?  When will this finding  
be made?  (Before or after the "take down"?)  When will CNBC be forced  
to close up shop or move their studio to the Caymans?  Will this  
impact Bartiromo's wardrobe significantly?  (Please tell us it will  
not alter Gasparino's).

Actually, we think we know the answers to these questions already and  
therefore, quite obviously, Zero Hedge's Q2 2009 "short American free- 
speech" trade continues to provide some of our portfolio's most  
dramatically outsized risk-adjusted returns.