Archive for the ‘Architecture’ Category

Tempest in Tempe: First Amendment in the Desert

posted by Derek Bambauer

In the spirit of the excellent colloquy here about Marvin’s thinking on First Amendment architectures, I bring up this news item: Arizona State University blocked both Web access to, and e-mail from, the change.org Web site. ASU students had begun a petition demanding that the university reduce tuition. The university essentially made three claims as to why it did so (below, in order of increasing stupidity):

1. It was a technical mistake;
2. Change.org was spamming ASU; and
3. ASU needs to “protect the use of our limited and valuable network resources for legitimate academic, research and administrative uses.”

#1 and #2 run together. If spam is the problem, you don’t need to block access to the Web site. However, if you are concerned that students are going to read the petition, and sign it, you do need to block access to the Web site.

For #2, sorry, ASU, this isn’t spam. Spam is unsolicited bulk commercial e-mail. Change.org is, allegedly, sending unsolicited political e-mail. And that’s protected by the First Amendment – see, for example, the Virginia Supreme Court’s analysis of that state’s anti-spam law that covered political messages. Potential political spammers have a sharp disincentive to fill recipient’s inboxes – it’s a sure-fire way to annoy them into opposing your position.

For #3, ASU doesn’t get to determine what academic and research uses are “legitimate.” If they throttle P2P apps, that’s fine. If they limit file sizes for attachments, no problem. But deciding that the message from Change.org is not “legitimate” is classic, and unconstitutional, viewpoint discrimination.

This looks like censorship. I think it’s more likely to be stupidity: someone in ASU’s IT department decided to block these messages as spam, and to filter outbound Web requests to the site contained within those messages. But: with great power over the network comes great responsibility. Well-intentioned constitutional violations are still unlawful. It would also help if ASU’s spokesperson simply admitted the mistake rather than engaging in idiotic justification.

As I mention in Orwell’s Armchair, public actors are increasingly important sources of Internet access. But when ASU and other public universities take on the role of ISP, they need to remember that they are not AOL: their technical decisions are constrained not merely by tech resources, but by our commitment to free speech. Let’s hope the Sun Devils cool off on the filtering…

Cross-posted at Info/Law.

  February 10, 2012 at 5:10 pm   Posted in: Architecture, Civil Rights, Constitutional Law, Current Events, Cyber Civil Rights, Cyberlaw, First Amendment, Politics, Social Network Websites, Technology, Web 2.0   Print This Post   No Comments

The Daily You: A Mandatory Read

posted by Danielle Citron

Over at the Business Insider, Doug Weaver has a terrific review of our guest blogger Joe Turow’s new book The Daily You, demonstrating its practical importance to people in the field like Weaver as well as to policymakers and scholars.Here’s the review:

Listening to the insider discussions and industry reporting about online marketing provides a numbing sense of false comfort.  But every so often, we go outside the bubble and hear civilians talking about what we do.  I’m sure most of us have had someone at a party or family gathering share their ‘creeped out’ moment;  that instance where they finally saw clearly that somehow they were being ‘followed’ online.   Other times, they offer us largely unformed general concerns about online privacy: they don’t really have a sense of what’s going on but they instinctively know they don’t like it.  And once in a great while you’ll hear from someone who’s really done their homework and brings crystal clarity to the issue from the consumer point of view.

That moment came for me when I stumbled on an NPR radio interview with Joseph Turow, author of “The Daily You: How the New Advertising Industry is Defining Your Identity and Your Worth.”  After using up my ten minute commute, I found myself sitting my car in the parking lot of my office for another 30 minutes just listening to this guy.  It was kind of like hearing someone talk about you in a bathroom when they don’t know you’re in one of the stalls.  Except they’re totally getting it right.  Turow, an associate dean at the Annenberg Communication school at Penn, has done a lot of homework.  The book is detailed and rigorous, but also extremely accessible to the curious consumer.  While it’s probably not going to sell millions of copies, I believe it’s going to be a hugely influential and important book for several reasons.

  February 1, 2012 at 5:47 pm   Posted in: Architecture, Articles and Books, Innovation, Political Economy, Privacy, Technology   Print This Post   No Comments

The Hardest Thing to Predict Is the Future

posted by Derek Bambauer

SOPA and PROTECT IP are dead… for now. (They’ll be back. COICA is like a wraith inhabiting PROTECT IP.) Until then, Michelle Schusterman has a terrific graphic about the movie industry’s predictions of doom with each new technological revolution. (Ditto the music industry: the player piano, radio, CDs, the MP3 player, etc., etc.) One reason for this is that it’s difficult to predict the effects of a new communications technology. People thought we’d use the telephone to listen to concerts from afar. But another reason is that content industries see advances not as an opportunity but as a threat – a threat that they deploy IP law to combat, or at least control. And in a policy space where lawmakers don’t demand actual data on threats before acting, trumped-up assertions of job loss and revenue loss can carry the day. This puts the lie to the theory that IP owners will move to exploit new communications media, if only they are protected against infringement. We didn’t get viable Internet-based music sales until iTunes in 2003, and Spotify is the first serious streaming app (the “celestial jukebox“). Think about prior efforts like Pressplay and MusicNow, and how terrible they were. Letting the content industry design delivery models is like letting Matt Millen draft your football team.

This is why piracy is a helpful pointer: it tells us what channels consumers want to use to access content. Sometimes this is just displacement of lawful consumption, as when college students with copious disposable income download songs via BitTorrent, but sometimes it indicates an unaddressed market niche (as with me and the baseball playoffs). To paraphrase Thomas Jefferson, I think a little bit of infringement now and again is a good thing. It is only when there is a viable threat in a new medium that existing players innovate – or cut deals with those who do. In that regard, even if SOPA and PROTECT IP are effective at reducing infringement, we might not want them.

Cross-posted at Info/Law.

  January 31, 2012 at 6:58 pm   Posted in: Architecture, Culture, Cyberlaw, DRM, Innovation, Intellectual Property, Media Law, Movies & Television, Politics, Technology, Web 2.0   Print This Post   2 Comments

The E.U. Data Protection Directive and Robot Chicken

posted by Derek Bambauer

The European Commission released a draft of its revised Data Protection Directive this morning, and Jane Yakowitz has a trenchant critique up at Forbes.com. In addition to the sharp legal analysis, her article has both a Star Wars and Robot Chicken reference, which makes it basically the perfect information law piece…

  January 25, 2012 at 4:32 pm   Posted in: Advertising, Architecture, Civil Rights, Consumer Protection Law, Current Events, Cyber Civil Rights, Cyberlaw, Google and Search Engines, Innovation, Politics, Privacy, Privacy (Consumer Privacy), Social Network Websites, Technology, Web 2.0   Print This Post   No Comments

Cybersecurity Puzzles

posted by Derek Bambauer

Cybersecurity is in the news: a network intrusion allegedly interfered with railroad signals in the Northwest in December; the Obama administration refused to support the Stop Online Piracy Act due to worries about interfering with DNSSEC; and the GAO concluded that the Department of Homeland Security is making things worse by oversharing. So, I’m fortunate that the Minnesota Law Review has just published the final version of Conundrum (available on SSRN), in which I argue that we should take an information-based approach to cybersecurity:

Cybersecurity is a conundrum. Despite a decade of sustained attention from scholars, legislators, military officials, popular media, and successive presidential administrations, little if any progress has been made in augmenting Internet security. Current scholarship on cybersecurity is bound to ill-fitting doctrinal models. It addresses cybersecurity based upon identification of actors and intent, arguing that inherent defects in the Internet’s architecture must be remedied to enable attribution. These proposals, if adopted, would badly damage the Internet’s generative capacity for innovation. Drawing upon scholarship in economics, animal behavior, and mathematics, this Article takes a radical new path, offering a theoretical model oriented around information, in distinction to the near-obsession with technical infrastructure demonstrated by other models. It posits a regulatory focus on access and alteration of data, and on guaranteeing its integrity. Counterintuitively, it suggests that creating inefficient storage and connectivity best protects user capabilities to access and alter information, but this necessitates difficult tradeoffs with preventing unauthorized interaction with data. The Article outlines how to implement inefficient information storage and connectivity through legislation. Lastly, it describes the stakes in cybersecurity debates: adopting current scholarly approaches jeopardizes not only the Internet’s generative architecture, but also key normative commitments to free expression on-line.

Conundrum, 96 Minn. L. Rev. 584 (2011).

Cross-posted at Info/Law.

  January 24, 2012 at 4:13 pm   Posted in: Anonymity, Architecture, Articles and Books, Current Events, Cyberlaw, Innovation, Intellectual Property, Law Rev (Minnesota), Military Law, Politics, Privacy (National Security), Technology, Web 2.0   Print This Post   No Comments

Goldilocks and Cybersecurity

posted by Derek Bambauer

It may seem strange in a week where Megaupload’s owners were arrested and SOPA / PROTECT IP went under, but cybersecurity is the most important Internet issue out there. Examples? Chinese corporate espionage. Cyberweapons like Stuxnet. Anonymous DDOSing everyone from the Department of Justice to the RIAA. The Net is full of holes, and there are a lot of folks expert in slipping through them.

I argue in a forthcoming paper, Conundrum, that cybersecurity can only be understood as an information problem. Conundrum posits that, if we’re worried about ensuring access to critical information on-line, we should make the Net less efficient – building in redundancy. But for cybersecurity, information is like the porridge in Goldilocks: you can’t have too much or too little. For example, there was recent panic that a water pump burnout in Illinois was the work of cyberterrorists. It turned out that it was actually the work of a contractor for the utility who happened to be vacationing in Russia. (This is what you get for actually answering your pager.)

The “too little” problem can be described via two examples. First, prior to the attacks of September 11, 2001, the government had information about some of the hijackers, but was impeded by lack of information-sharing and by IT systems that made such sharing difficult. Second, denial of service attacks prevent Internet users from reaching sites they seek – a tactic perfected by Anonymous. The problem is the same: needed information is unavailable. I think the solution, as described in Conundrum, is:

increasing the inefficiency with which information is stored. The positive aspects of both access to and alteration of data emphasize the need to ensure that authorized users can reach, and modify, information. This is more likely to occur when users can reach data at multiple locations, both because it increases attackers’ difficulty in blocking their attempts, and because it provides fallback options if a given copy is not available. In short, data should reside in many places.

But there is also the “too much” problem. This is exemplified by the water pump fiasco: after 9/11, the federal government, including the Department of Homeland Security, began a massive information-sharing effort, such as through Fusion Centers. The difficulty is that the Fusion Centers, and other DHS projects, are simply firehosing information onto companies who constitute “critical infrastructure.” Much of this information is repetitive or simply wrong – as with the water pump report. Bad information can be worse than none at all: it distracts critical infrastructure operators, breeds mistrust, and consumes scarce security resources. The pendulum has swung too far the other way: from undersharing to oversharing. Finding the “just right” solution is impossible; this is a dynamic environment with constantly changing threats. But the government hasn’t yet made the effort to synthesize and analyze information before sounding the alarm. It must, or we will pay the price of either false alarms, or missed ones.

(A side note: I don’t put much stock in which federal agency takes the lead on cybersecurity – there are proposals for the Department of Defense, or the Department of Energy, among others – but why has the Obama administration delegated responsibility to DHS? Having the TSA set Internet policy hardly seems sensible. Beware of Web-based snow globes!)

Cross-posted at Info/Law.

  January 21, 2012 at 7:38 pm   Posted in: Architecture, Cyberlaw, Government Secrecy, Innovation, Intellectual Property, Technology, Web 2.0   Print This Post   No Comments

Censorship on the March

posted by Derek Bambauer

Today, you can’t get to The Oatmeal, or Dinosaur Comics, or XKCD, or (less importantly) Wikipedia. The sites have gone dark to protest the Stop Online Piracy Act (SOPA) and the PROTECT IP Act, America’s attempt to censor the Internet to reduce copyright infringement. This is part of a remarkable, distributed, coordinated protest effort, both online and in realspace (I saw my colleague and friend Jonathan Askin headed to protest outside the offices of Senators Charles Schumer and Kirstin Gillibrand). Many of the protesters argue that America is headed in the direction of authoritarian states such as China, Iran, and Bahrain in censoring the Net. The problem, though, is that America is not alone: most Western democracies are censoring the Internet. Britain does it for child pornography. France: hate speech. The EU is debating a proposal to allow “flagging” of objectionable content for ISPs to ban. Australia’s ISPs are engaging in pre-emptive censorship to prevent even worse legislation from passing. India wants Facebook, Google, and other online platforms to remove any content the government finds problematic.

Censorship is on the march, in democracies as well as dictatorships. With this movement we see, finally, the death of the American myth of free speech exceptionalism. We have viewed ourselves as qualitatively different – as defenders of unfettered expression. We are not. Even without SOPA and PROTECT IP, we are seizing domain names, filtering municipal wi-fi, and using funding to leverage colleges and universities to filter P2P. The reasons for American Internet censorship differ from those of France, South Korea, or China. The mechanism of restriction does not. It is time for us to be honest: America, too, censors. I think we can, and should, defend the legitimacy of our restrictions – the fight on-line and in Congress and in the media shows how we differ from China – but we need to stop pretending there is an easy line to be drawn between blocking human rights sites and blocking Rojadirecta or Dajaz1.

Cross-posted at Info/Law.

  January 18, 2012 at 5:31 pm   Posted in: Advertising, Architecture, Civil Procedure, Constitutional Law, Culture, Current Events, Cyberlaw, First Amendment, Google & Search Engines, Google and Search Engines, Innovation, Intellectual Property, Media Law, Movies & Television, Politics, Technology, Web 2.0, Wiki   Print This Post   No Comments

Supporting the Stop Online Piracy Act Protest Day

posted by Danielle Citron

As my co-blogger Gerard notes, today is SOPA protest day.  Sites like Google or WordPress have censored their logo or offered up a away to contact your congressperson, though remain live.  Other sites like Wikipedia, Reddit, and Craigslist have shutdown, and more are set to shut down at some point today.  There’s lots of terrific commentary on SOPA, which is designed to tackle the problem of foreign-based websites that sell pirated movies, music, and other products–but with a heavy hand that threatens free expression and due process. The Wall Street Journal’s Amy Schatz has this story and Politico has another helpful piece; The Hill’s Brendan Sasso’s Twitter feed has lots of terrific updates.  Mark Lemley, David Levine, and David Post carefully explain why we ought to reject SOPA and the PROTECT IP Act in “Don’t Break the Internet” published by Stanford Law Review Online.  In the face of the protest, House Judiciary Committee Chairman Lamar Smith (R-TX) vowed to bring SOPA to a vote in his committee next month. “I am committed to continuing to work with my colleagues in the House and Senate to send a bipartisan bill to the White House that saves American jobs and protects intellectual property,” he said.  So, too, Senator Patrick Leahy (D-VT) pushed back against websites planning to shut down today in protest of his bill.  “Much of what has been claimed about the Senate’s PROTECT IP Act is flatly wrong and seems intended more to stoke fear and concern than to shed light or foster workable solutions. The PROTECT IP Act will not affect Wikipedia, will not affect reddit, and will not affect any website that has any legitimate use,” Chairman Leahy said. Everyone’s abuzz on the issue, and rightly so.  I spoke at a panel on intermediary liability at the Congressional Internet Caucus’ State of the Net conference and everyone wanted to talk about SOPA.  I’m hoping that the black out and other shows of disapproval will convince our representatives in the House and Senate to back off the most troubling parts of the bill.  As fabulous guest blogger Derek Bambauer argues, we need to bring greater care and thought to the issue of Internet censorship.  Cybersecurity is at issue too, and we need to pay attention.  Derek may be right that both bills may go nowhere, especially given Silicon Valley’s concerted lobbying efforts against the bills.  But we will have to watch to see if Representative Smith lives up to his promise to bring SOPA back to committee and if Senator Leahy remains as committed to PROTECT IP Act in a few weeks as he is today.

  January 18, 2012 at 10:11 am   Posted in: Architecture, Civil Rights, Current Events, Cyber Civil Rights, Cyberlaw, First Amendment, Law Talk, Media Law, Social Network Websites, Technology, Web 2.0   Print This Post   2 Comments

The Fight For Internet Censorship

posted by Derek Bambauer

Thanks to Danielle and the CoOp crew for having me! I’m excited.

Speaking of exciting developments, it appears that the Stop Online Piracy Act (SOPA) is dead, at least for now. House Majority Leader Eric Cantor has said that the bill will not move forward until there is a consensus position on it, which is to say, never. Media sources credit the Obama administration’s opposition to some of the more noxious parts of SOPA, such as its DNSSEC-killing filtering provisions, and also the tech community’s efforts to raise awareness. (Techdirt’s Mike Masnick has been working overtime in reporting on SOPA; Wikipedia and Reddit are adopting a blackout to draw attention; even the New York City techies are holding a demonstration in front of the offices of Senators Kirstin Gillibrand and Charles Schumer. Schumer has been bailing water on the SOPA front after one of his staffers told a local entrepreneur that the senator supports Internet censorship. Props for candor.) I think the Obama administration’s lack of enthusiasm for the bill is important, but I suspect that a crowded legislative calendar is also playing a significant role.

Of course, the PROTECT IP Act is still floating around the Senate. It’s less worse than SOPA, in the same way that Transformers 2 is less worse than Transformers 3. (You still might want to see what else Netflix has available.) And sponsor Senator Patrick Leahy has suggested that the DNS filtering provisions of the bill be studied – after the legislation is passed. It’s much more efficient, legislatively, to regulate first and then see if it will be effective. A more cynical view is that Senator Leahy’s move is a public relations tactic designed to undercut the opposition, but no one wants to say so to his face.

I am not opposed to Internet censorship in all situations, which means I am often lonely at tech-related events. But these bills have significant flaws. They threaten to badly weaken cybersecurity, an area that is purportedly a national priority (and has been for 15 years). They claim to address a major threat to IP rightsholders despite the complete lack of data that the threat is anything other than chimerical. They provide scant procedural protections for accused infringers, and confer extraordinary power on private rightsholders – power that will, inevitably, be abused. And they reflect a significant public choice imbalance in how IP and Internet policy is made in the United States.

Surprisingly, the Obama administration has it about right: we shouldn’t reject Internet censorship as a regulatory mechanism out of hand, but we should be wary of it. This isn’t the last stage of this debate – like Wesley in The Princess Bride, SOPA-like legislation is only mostly dead. (And, if you don’t like the Obama administration’s position today, just wait a day or two.)

Cross-posted at Info/Law.

  January 16, 2012 at 7:28 pm   Posted in: Architecture, Civil Procedure, Constitutional Law, Culture, Cyber Civil Rights, Cyberlaw, First Amendment, Google & Search Engines, Google and Search Engines, Intellectual Property, Media Law, Movies & Television, Politics, Technology, Web 2.0   Print This Post   One Comment

Surveillance, For Your Benefit?

posted by Danielle Citron

Bloomberg Businessweek reports on retailers’ use of camera surveillance to glean intelligence from shoppers’ behavior.  A company called RetailNext, for instance, runs its software through a store’s security camera video feed to analyze customer behavior.  It describes itself as the “leader in real-time in-store monitoring, enabling retailers and manufacturers to collect, analyze and visualize in-store data.”  According to the company, it “uses best-in-class video analytics, on-shelf sensors, along with data from point-of-sale and other business systems, to automatically inform retailers about how people engage in their stores.”  RetailNext’s software can integrate data from hardware such as RFID chips and motion sensors to track customers’ movements.  The company explains that it “tracks more than 20 million shoppers per month by collecting data from more than 15,000 sensors in retail stores.”  Its service apparently helps stores figure out where to place certain merchandise to boost sales.  T-Mobile uses similar technology from another firm 3VR, whose software tracks how people move around their stores, how long they stand in front of displays, and which phones they pick up and for how long.  3VR is testing facial-recognition software that can identify shoppers’ gender and approximate age.   Businessweek explains that the “software would give retailers a better handle on customer demographics and help them tailor promotions.”  What we are seeing is, according to 3VR’s CEO, just “scratching the surface as someday “you’ll have the ability to measure every metric imaginable.”

Indeed.  Little imagination is needed to predict the future in light of our present.  As Joseph Turow‘s important new book The Daily You: How the New Advertising Industry Is Defining Your Identity and Worth (Yale University Press) explores, data collection and analysis of individuals is breathtaking.  In the name of better, more relevant advertising and marketing efforts, companies like Acxiom have databases teeming with our demographic data (age, gender, race, ethnicity, address, income, marital status), interests, online and offline spending habits, and heath status based on our purchases and online comments (diabetic, allergy sufferer, and the like).  Consumers are sorted into categories such as “Corporate Clout,” “Soccer and SUV,” “Mortgage Woes,” and “On the Edge.”  eXelate gathers online data of over 200 million unique individuals per month through deals with hundreds of sites: their demographics, social activities, and social networks.  Advertisers can add even more data to eXelate’s cookies– data from Nielsen, which includes Census Bureau data, as well as data brokers’ digital dossiers.  Data firms like Lotame track the comments that people leave on sites and categorize them.  Now, let’s consider weaving in facial recognition software and retailer cameras of companies like 3VR and RetailNext.  And to really top things off, let’s think about linking all of this data to cellphone location information.  The surveillance of networked spaces would be totalizing.

Turow’s book exposes important costs of these developments.  This post will discuss a few–hopefully, I can have Professor Turow on for a Bright Ideas feature.  This sort of targeting and hyper surveillance leaves many with far more narrow options and with social discrimination.  Marketers use these databases to determine if Americans are worthy “targets” or not-worth-bothering with “waste.”  For the “Soccer and SUV” moms between 35 and 45 who live in the West Coast and want to buy a small car, car companies may offer them serious discounts via online advertisements and e-mail.  But their “On the Edge” counterparts get left in the cold with higher prices–why bother trying to attract people who don’t pay their debts?  All of this sorting encourages media to offer soft stories designed to meet people’s interests, as secretly determined by those gathering and analyzing our networked lives.  This discussion brings to mind to another important read: Julie Cohen‘s Configuring the Networked Self: Law, Code, and the Play of Everyday Practice (Yale University Press).   As Professor Cohen thoughtfully explores, this sort of surveillance has a profound impact on the creative play of our everyday lives.  It creates hierarchies among those watched and systematizes difference.  I’ll have lots more to say about Cohen’s take on our networked society more generally, soon.  In March, we will be hosting an online symposium on her book–much to look forward to in the new year.

  December 25, 2011 at 4:15 pm   Posted in: Architecture, Privacy, Privacy (Consumer Privacy), Privacy (Medical), Social Network Websites, Technology   Print This Post   No Comments

Identifying Those Responsible for a “Living Horror” and Its Signficance for Proposed Federal Law

posted by Danielle Citron

In what can only be described as the worst side of humanity, the bulletin board Dreamboard hosted a members-only sharing of child pornography, particularly of children under 12.  New members could join the board only if they posted child pornography.  Members had to continue to post images of child porn every 50 days or face removal.  The rules of the board, printed in English, Russian, Japanese, and Spanish, included: (1) “Keep the girls under 13, in fact, I really need to see 12 or younger to know your[sic] a brother,” (2) “don’t avoid nudity in previews. I will NOT accept you if there’s no nudity.  And my definition of nudity is pussy or anal in the shot.  You just waste your own time if you don’t do this.  Because you will not get in, if you don’t follow the rules.”  One section of Dreamboard was titled “Super Hardcore,” and the rules required images and videos of “very young kids, getting fucked, and preteens in distress, and or crying. . . . If a girl looks totally comfortable, she’s not in distress, and it does NOT belong in this section.”  This part of the site featured images of adults having violent sexual intercourse with very young children, including infants.  One file was entitled “2yo assfuck she cries for mommy nasty pthc pedo 1 yo 3 yo 4 yo.”  The board amassed over 120 terabytes of violent sexual rape and abuse of children.

According to the rules of the site, members were to use encryption technologies to prevent detection.  The rules specified precisely which encryption technologies and proxy servers should be used and which should be avoided.  Members did not use their real names, but instead screen names to conceal their identities.  All of this suggests that the board went to great lengths to secure their anonymity.

Early this month, Attorney General Eric Holder, Jr. announced that federal investigators has charged 72 people for violating child pornography laws and more than 50 people have been arrested in the United States.  The defendants included doctors, lawyers, police officers, and a Navy commander, according to the Ellis County Observer.  Thirteen of those charged have pled guilty, and four members have been sentenced between 20 and 30 years.  Around 600 people from around the world were members of the bulletin board, which has been shut down.  The bulletin board used a server in Atlanta.  As Assistant Attorney General Lanny Breuer explained, the site “was a living horror.”  John Morton, director of Immigration and Customs Enforcement, declined to say how investigators overcame the technological precautions used by some of the members.  He did tell the New York Times: “To those inclined to abuse small children, know this: this isn’t a place on the Internet or the planet in which you are truly safe.  It may take us some time, it may take us some effort, but we will find you regardless of a screen name, a proxy server or an encryption effort, period.” Read the rest of this post »

  August 18, 2011 at 11:48 am   Posted in: Anonymity, Architecture, Criminal Law, Criminal Procedure, Cyber Civil Rights, Privacy, Privacy (Law Enforcement), Social Network Websites   Print This Post   7 Comments

Scoring Ourselves to Economic Death

posted by Danielle Citron

In The New York Times, Stephanie Rosenbloom asks readers to “imagine a world in which we are assigned a number that indicates how influential we are.”  That number would help determine our success at getting a job, hotel-room upgrade, break on a service, or free samples at the store.  As Rosenbloom tells us, imagine no more, companies, such as Klout, PeerIndex, and Twitter Grader, are mining our social media activities and assigning us influence scores.  Social scoring is based on our online social network activity, including the number of followers, friends, and the extent to which our online activity gets people moving.  If if you recommend a salon to your social network friends and they follow suit, your good word has two functions.  You’re doing a good thing for your friends and the salon (let’s hope), and now you’re doing good for you.  Because you have inspired people to take action, your influence score may rise.  In the present, people with high scores get preferential treatment by retailers.  More than 2,500 marketers are now using Klout’s data.  Audi will begin offering Facebook users promotions based on their Klout score.  The Las Vegas Palms Hotel and Casino is using Klout data to give highly rated guests an upgrade or tickets to a show.  In the future, those scores could be used by prospective employers, friends, and dates.

On the one hand, this market trend has something important to commend — its visibility.  Consumers can find out their influence scores and work to raise them.  By contrast, the impact of behavioral advertising is often hidden.  We are tracked and scored in databases and have no idea how it shakes out.  Joe Turow’s excellent book Niche Envy explains that consumers know very little about how their data personalizes market transactions.  Some individuals may end up as haves and others as have-nots, but neither group knows the extent of it.  As Turow explains, “our simple corner store is turning into a Marrakech bazaar–except that the merchant has been analyzing our diaries while we negotiate blindfolded, behind a curtain, through a translator.”  On the other hand, the information isn’t perfect and the algorithms secret so people may waste time doing things that they believe will raise their scores but don’t.  But that isn’t really troubling, unless every job or blog post had the effect we hoped it might.  What’s troubling is the trend’s implications for society and culture.  It seems old school to say that people blog, make friends, and engage in online chats to play, experiment, and create culture.  Now, they may feel pressured to do all of these things as a matter of economic necessity.  We may forgo experimentation for product endorsements, and idle chatter for better job prospects.  This makes our children’s choice to engage with social media seem like less of choice than a carefully cultivated necessity.  It also spells far more trouble for people who are already victimized, those who cyber mobs target with lies, threats, technical attacks, and privacy invasions.  They go offline or write under pseudonyms to protect themselves.  We now know that those choices (if we can call it that) cost more economically than they already do aside from the many other costs that my work discusses.  I imagine there’s more to this influence score story but I thought I’d share my initial take.

  June 28, 2011 at 6:24 pm   Posted in: Advertising, Architecture, Culture, Cyber Civil Rights, Cyberlaw, Google & Search Engines, Privacy, Privacy (Consumer Privacy), Web 2.0   Print This Post   3 Comments

Bullet, So Not Dodged

posted by Danielle Citron

The question that I had been dreading came at last: “Mom, can I have a Facebook page?”  My daughter provided a strong defense: she’s 13, so she meets Facebook’s Terms of Service age requirement; she’s nearly an adult in her religion’s eyes (her bat mitzvah is in a week); past practices proves she’s responsible; and well, she feels ready.  (And I just discovered, she’s done her homework: see this Yahoo Answers! “My mom won’t let me get a Facebook page, how do I convince her?” thread that I found on my computer).

Next came the conversation.  We talked about how increasingly social media activity is part of one’s life’s biography.  Anything said and done in social network spaces becomes part of who you are in our Information Age.  Colleges may ask for your Facebook password.  Over 70% of employers look at social media data for interviewing and hiring (and sad to say, the outcomes are grim for applicants who over 60% of the time don’t get the interview or job due to social network profiles).  It’s not just what you post that speaks volumes — your social network (friends and their friends) tells some of your story for you.  There goes any control that you thought you had.  FB users often wrestle with whether they should de-friend those whose online personas don’t match their sensibilities (or the way in which they want others to perceive them).  This means that users need to keep a careful eye on their friends’ profiles (as well as ever-changing privacy settings).

That’s a lot of responsibility.  Or, as Bill Keller of the New York Times put it when he allowed his 13-year old daughter to join Facebook, he felt “a little as if I had passed my child a pipe of crystal meth.“  Beyond the potential privacy and reputational concerns that accompany social media use, an online life has other potential perils, like overuse (and thus inattention to studies, face-to-face family time, etc.) that cyber-pessimists underscore (see Nicholas Carr’s The Shallows).  And bullying, serious harassment, bigotry increasingly appear in mainstream social media in ways that kids can’t necessarily avoid (my work explores those problems, see here, here, and here, as well as terrific work by guest bloggers Ari Waldman and Mary Anne Franks).  Of course, there’s also lots of positive stuff emerging from these networked spaces.  Social media outlets like Facebook allow us to enact our personalities.  They let us express ourselves in ever-changing and expanding ways.  FB and other outlets host civic engagement as Helen Norton and I have emphasized.

I wonder, too, if my kid has a meaningful choice.  Can digital natives really stay away from social media if all of their friends socialize there?  And will employers and colleges expect that applicants partake in these activities because everyone else does?  Someday, will resisting having a Facebook profile express something negative about you?  Will it signal that you’re not socially adjusted or successful?  As Scott Peppet underscores in his work, we may be forced to give up our privacy to show that we are indeed healthy, social, smart, and the like.  That’s a lot to process, right?  I’m going to chew on this a while.  Your thoughts are most welcome!

  June 4, 2011 at 11:19 am   Posted in: Architecture, Cyber Civil Rights, Cyberlaw, Google & Search Engines, Privacy, Privacy (Gossip & Shaming), Web 2.0   Print This Post   5 Comments

The (Still Yet) Unfulfilled Promise of Automated Government Decision-Making

posted by Danielle Citron

In Technological Due Process, 85 Wash. U. L. Rev. 1249 (2008), I explored the promise and perils of the increasing automation of administrative decision-making.  The automated administrative state took root after the convergence of a number of trends — the budget shortfalls of the 1990s, the falling costs and increased performance of information systems, and the emergence of the Internet.  Government officials saw computerized automation as an efficient way to reduce operating costs: Automated systems meant less paperwork and fewer staff.  Today, all states now automate a significant portion of the administration of their public benefit programs.  More than fifty federal agencies execute policy with data-matching and data-mining programs.  As a result, agencies increasingly use information systems to make decisions about important individual rights.

Technological Due Process identified three central problems with administrative automated systems.  First, when programmers translate policy into code, they inevitably distort it, thus embedding incorrect policy into systems.  Second, data matching programs misidentify individuals because they use crude algorithms that cannot distinguish between similar names.  Last, automated systems often have problems providing notice to individuals, often because they lack audit trails that capture why government agencies take particular action.

Colorado’s automated public benefits system, known as CBMS, served as an important case study for my work.  Responses to open-sunshine requests revealed that from September 2004 to April 2007, programmers embedded over 900 incorrect rules regarding Medicaid, food stamps, and other public benefits into CBMS.  As a result, CBMS terminated Medicaid benefits of patients with breast cancer based on income and asset limits unauthorized by federal or state law.  It denied food stamps to individuals with prior drug convictions in violation of Colorado law.  And it demanded that eligibility workers ask applicants if they were “beggars,” even though neither federal law nor state law required an answer to that question for the provision of public benefits.  Moreover, because CBMS lacked audit trails, individuals often received wholly deficient notice when the system cut or terminated their benefits.  At times, individuals received no notice.

The past four years has seen little progress.  Although state officials in 2009 thought that entering into a $48.6 million, four-year contract with Deloitte Consulting would help fix these problems, matters have arguably gotten worse.  CBMS, for instance, has delayed processing applications for benefits in 70% of cases (in violation of federal law).  It continues to terminate individuals’ public benefits without notice.  (One case led to the death of a nine-year old boy after a pharmacy would not fill his asthma prescription despite proof that his family qualified for Medicaid help).  Business school professor Don McCubbrey, who I interviewed for Tech Due Process, recently explained to the Denver Post that the recent failures cannot be due to the thousands of new Medicaid and other benefit applications from the recession.  In his view, a “system that large should be able to scale.”  According to Ed Kahn of the Colorado Center on Law and Policy, the system hasn’t just failed to fulfill its federal and state requirements but has “regressed.” Read the rest of this post »

  February 28, 2011 at 12:30 pm   Posted in: Administrative Law, Architecture, Technology   Print This Post   One Comment

Wikipedia’s Efforts to Close its Gender Gap

posted by Danielle Citron

Time magazine recently did a true-to-form story on Wikipedia, where guest editors (and our very own featured author) Jonathan Zittrain (see here too), Robert McHenry, Benjamin Mako Hill, and Mike Schroepfer assisted in writing/editing/re-writing a feature entitled Wikipedia’s “Ten Years of Inaccuracy and Remarkable Detail.” As the piece explained, Wikipedia just celebrated its 10th birthday.  The site has 17 million entries in more than 250 languages, quite a feat given that Encyclopedia Brittanica only has 120,000 and only in English.  The Time wiki-like piece notes that Wikipedia has a “diverse, international body of contributors.”

According to The New York Times, most contributors are male.  More specifically, “less than 15 percent of its hundreds of thousands of contributors are female.”  This, in turn, has skewed the gender disparity of topics and emphasis.  Wikimedia’s executive director Sue Gardner explains that topics favored by girls such as friendship bracelets can seem short when compared with lengthy articles on something boys typically like such as toy soldiers or baseball cards.  The New York Times notes that a category with five Mexican feminist writers might not seem so impressive when compared with 45 articles on characters in “The Simpsons.”

Why is this so?  Joseph Reagle, a fellow at the Berkman Center for Internet and Society at Harvard and author of “Good Faith Collaboration: The Culture of Wikipedia,” explains that Wikipedia’s early contributors shared “many characteristics with the hard-driving hacker crowd,” including an ideology that “resists any efforts to impose rules or even goals like diversity, as well as a culture that may discourage women.”  He notes that adopting an ideology of openess means being “open to very difficult, high-conflict people, even misogynists.”  The demographics of Wikipedia’s editors may also stem, in part, from the tendency of women to be “less willing to assert their opinions in public.”

How Wikipedia is now, and has been, responding is worth noting.  Sue Gardner told the Times that she hopes to raise the share of women contributors through subtle persuasion and outreach to welcome newcomers to Wikipedia.  Dave Hoffman and Salil Mehra’s terrific piece Wikitruth Through Wikiorder demonstrates that the site has already fostered efforts to create a more inclusive environment.  As Hoffman and Mehra explain, Wikipedia has an Arbitration Committee whose volunteer members rule on disputes and set forth concrete rules on how users should behave.  The Arbitration Committee has sanctioned users who make homophobic, ethnic, racial or gendered attacks or who stalk and harass others.  According to Hoffman and Mehra’s empirical study, in cases when either impersonation or anti-social conduct like hateful attacks occur, the Administrative Committee will ban the user in 21% of cases.  Wikipedia’s more than 1,500 administrators, in turn, enforce those rules.  Wikipedia also permits users to report impolite, uncivil, or other difficult communications with editors in its Wikiquette alerts notice board.

  February 1, 2011 at 11:39 am   Posted in: Anonymity, Architecture, Current Events, Cyber Civil Rights, Cyberlaw, Social Network Websites, Web 2.0, Wiki   Print This Post   5 Comments

The Aftermath of Wikileaks

posted by Danielle Citron

The U.K.’s freedom of information commissioner, Christopher Graham, recently told The Guardian that the WikiLeaks disclosures irreversibly altered the relationship between the state and public.  As Graham sees it, the WikiLeaks incident makes clear that governments need to be more open and proactive, “publishing more stuff, because quite a lot of this is only exciting because we didn’t know it. . . WikiLeaks is part of the phenomenon of the online, empowered citizen . . . these are facts that aren’t going away.  Government and authorities need to wise up to that.”  If U.K. officials take Graham seriously (and I have no idea if they will), the public may see more of government.  Whether that more in fact provides insights to empower citizens or simply gives the appearance of transparency is up for grabs.

In the U.S., few officials have called for more transparency after the release of the embassy cables.  Instead, government officials have successfully pressured internet intermediaries to drop their support of WikiLeaks.  According to Wired, Senator Joe Lieberman, for instance, was instrumental in persuading Amazon.com to kick WikiLeaks off its web hosting service.  Senator Lieberman has suggested that Amazon, as well as Visa and and PayPal, came to their own decisions about WikiLeaks. Lieberman noted:

“While corporate entities make decisions based on their obligations to their shareholders, sometimes full consideration of those obligations requires them to act as responsible citizens.  We offer our admiration and support to those companies exhibiting courage and patriotism as they face down intimidation from hackers sympathetic to WikiLeaks’ philosophy of irresponsible information dumps for the sake of damaging global relationships.”

Unlike the purely voluntary decisions that Internet intermediaries make with regard to cyber hate, see here, Amazon’s response raises serious concerns about what Seth Kreimer has called “censorship by proxy.”  Kreimer’s work (as well as Derek Bambauer‘s terrific Cybersieves) explores American government’s pressure on intermediaries to “monitor or interdict otherwise unreachable Internet communications” to aid the “War on Terror.”

Legislators have also sought to ensure opacity of certain governmental information with new regulations.  Proposed legislation (spearheaded by Senator Lieberman) would make it a federal crime for anyone to publish the name of U.S. intelligence source.  The Securing Human Intelligence and Enforcing Lawful Dissemination (SHIELD) Act would amend a section of the Espionage Act that forbids the publication of classified information on U.S. cryptographic secrets or overseas communications intelligence.  The SHIELD Act would extend that prohibition to information on human intelligence, criminalizing the publication of information “concerning the identity of a classified source or information of an element of the intelligence community of the United States” or “concerning the human intelligence activities of the United States or any foreign government” if such publication is prejudicial to U.S. interests.

Another issue on the horizon may be the immunity afforded providers or users of interactive computer services who publish content created by others under section 230 of the Communications Decency Act.  An aside: section 230 is not inconsistent with the proposed SHIELD Act as it excludes federal criminal claims from its protections.  (This would not mean that website operators like Julian Assange would be strictly liable for others’ criminal acts on its services; the question would be whether a website operator’s actions violated the SHIELD Act).   Now for my main point: Senator Lieberman has expressed an interest in broadening the exemptions to section 230′s immunity to require the removal of certain content, such as videos featuring Islamic extremists.  Given his interest and the current concerns about security risks related to online disclosures, Senator Lieberman may find this an auspicious time to revisit section 230′s broad immunity.

  January 7, 2011 at 1:25 pm   Posted in: Anonymity, Architecture, Current Events, Cyberlaw, First Amendment, Google & Search Engines, Government Secrecy, Privacy (Electronic Surveillance), Privacy (National Security), Technology   Print This Post   2 Comments

The Offensive Internet

posted by Danielle Citron

Harvard University Press recently published The Offensive Internet: Speech, Privacy, and Reputation, a collection of essays edited by Saul Levmore and Martha Nussbaum.  Frank Pasquale, Dan Solove, and I have chapters in the book as do Saul Levmore, Martha Nussbaum, Cass Sunstein, Anupam Chander, Karen Bradshaw and Souvik Saha, Brian Leiter, Geoffrey Stone, John Deigh, Lior Strahilevitz, and Ruben Rodrigues.  Stanley Fish just reviewed the book at New York Times.com.

  January 4, 2011 at 2:18 pm   Posted in: Anonymity, Architecture, Articles and Books, Cyber Civil Rights, Cyberlaw, Privacy, Privacy (Gossip & Shaming), Technology   Print This Post   2 Comments

The Business Section of “The Last Newspaper”

posted by Frank Pasquale

The New Museum of Contemporary Art has hosted an exhibit called “The Last Newspaper” the past few months. Part of the exhibit centers around newspaper-based art. Another focus has been a “hybrid of journalism and performance art,” as groups of editors and writers developed “last newspaper sections” in areas ranging from real estate to sports to leisure. I co-edited the business section, which is available here in a low-res copy. I’m posting our editorial statement below.

I like how the various articles (contributed by entrepreneurs, theorists, designers, and others) hang together. The terrific design work is a refreshing change from the barren pages of business blogs, law reviews, and academic books (though it looks like some legal scholars are renewing interest in visual aspects of justice).

Read the rest of this post »

  December 27, 2010 at 10:16 pm   Posted in: Architecture, Cyberlaw, Economic Analysis of Law, Just for Fun, Law and Inequality, Philosophy of Social Science, Politics, Technology   Print This Post   2 Comments

Digital Lives of 2.0 People, Not Locked In But Extended Out

posted by Danielle Citron

Reviewing the movie The Social Network and Jaron Lanier’s book You Are Not a Gadget: A Manifesto in this month’s New York Review of Books, Zadie Smith warns readers of the perils of social network sites like Facebook where “life is turned into a database.”  According to Smith, Facebook “locks us” into a system designed by a college nerd to resemble “a Noosphere, an Internet with one mind, a uniform environment in which it genuinely doesn’t matter who you are, as long as you make ‘choices’ (which means, finally, purchases).”  Smith writes:

“When a human being becomes a set of data on a website like Facebook, he or she is reduced.  Everything shrinks.  Individual character.  Friendships.  Language. Sensibility.  In a way, it’s a transcendent experience: we lose our bodies, our messy feelings, our desires, our fears.  It reminds me that those of us who turn in disgust from what we consider an overinflated liberal-bourgeois sense of self should be careful what we wish for: our denuded networked selves don’t look more free, they just look more owned.”

Smith worries about her students and other “2.0 kids.”  She contrasts “1.0 people” who use social media tools to connect with others in an outward-facing way with “2.0 kids” who employ them to turn inward and towards the trivial.  2.0 people, Smith fears, are embedded in the software, avatars who don’t realize that “what makes something fully real is that it is impossible to represent it to completion.”  She wonders: “what if 2.0 people feel their socially networked selves genuinely represent them to completion?”  In Smith’s view, Mark Zuckerberg tamed “the wild west of the Internet” to “fit the suburban fantasies of a suburban soul,” risking the extinction of the “private person who is a mystery to the world and–which is more important — to herself.”

Smith’s review recalls Neil Postman’s critique of television culture and Benjamin Barber’s warnings about contemporary consumerism.  While television helped us amuse ourselves to death and pervasive pop culture produces shoppers, not thinkers, social network sites turn youth culture into over-sharing, unthinking, eager-to-please avatars who “watch the reality-TV show Bride Wars because their friends are.”  Yet this can’t be the whole story.  Whether 41 or 21, social network participants live in the real world, integrating their online activities seamlessly into their daily lives.  Far more goes on in social network sites like Facebook than sharing information to “make others like you” as Smith suggests.  On Facebook and other popular social media sites, people join groups of every stripe.  They work, as Miriam Cherry’s terrific new article Virtual Work addresses.  They build  reputations in ways that can enhance offline careers.  They join study groups.  In many respects, social media sites provide platforms for genuine participation far more than just Government 2.0 engagement.  Far from deadening the everyday citizen, social media platforms can resemble Alexis de Toqueville’s town meeting, John Dewey’s schools, and Cynthia Estlund’s workplace.  Of course, citizenship participation online is different–it is not the face-to-face interaction envisioned by Toqueville, Dewey, and Estlund.  But even with the challenges brought by internet-mediated interactions, 2.0 kids are more than denuded avatars.

  November 10, 2010 at 10:56 am   Posted in: Anonymity, Architecture, Cyber Civil Rights, Cyberlaw, Privacy, Social Network Websites, Technology, Web 2.0   Print This Post   4 Comments

Future of the Internet Symposium: Do we need a new generativity principle?

posted by Barbara van Schewick

[This is the second of two posts on Jonathan Zittrain’s book The Future of the Internet and how to stop it. The first post (on the relative importance of generative end hosts and generative network infrastructure for the Internet's overall ability to foster innovation) is here.]

In the book’s section on “The Generativity Principle and the Limits of End-to-End Neutrality,” Zittrain calls for a new “generativity principle” to address the Internet’s security problem and prevent the widespread lockdown of PCs in the aftermath of a catastrophic security attack: “Strict loyalty to end-to-end neutrality should give way to a new generativity principle, a rule that asks that any modifications to the Internet’s design or to the behavior of ISPs be made where they will do the least harm to generative possibilities.” (p. 165)

Zittrain argues that by assigning responsibility for security to the end hosts, “end-to-end theory” creates challenges for users who have little knowledge of how to best secure their computers. The existence of a large number of unsecured end hosts, in turn, may facilitate a catastrophic security attack that will have widespread and severe consequences for affected individual end users and businesses. In the aftermath of such an attack, Zittrain predicts, users may be willing to completely lock down their computers so that they can run only applications approved by a trusted third party.[1]

Given that general-purpose end hosts controlled by users rather than by third-party gatekeepers are an important component of the mechanism that fosters application innovation in the Internet, Zittrain argues, a strict application of “end-to-end theory” may threaten the Internet’s ability to support new applications more than implementing some security functions in the network – hence the new principle.

This argument relies heavily on the assumption that “end-to-end theory” categorically prohibits the implementation of security-related functions in the core of the network. It is not entirely clear to me what Zittrain means by “end-to-end theory.” As I explain in chapter 9 of my book, Internet Architecture and Innovation (pp. 366-368), the broad version of the end-to-end arguments [2] (i.e., the design principle that was used to create the Internet’s original architecture) does not establish such a rule. The broad version of the end-to-end arguments provides guidelines for the allocation of individual functions between the lower layers (the core of the network) and the higher layers at the end hosts, not for security-related functions as a group.

Read the rest of this post »

  September 8, 2010 at 4:57 pm   Posted in: Architecture, Articles and Books, Cyberlaw, Symposium (Future of Internet), Technology, Uncategorized   Print This Post   One Comment

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