Archive for the ‘Cyberlaw’ Category
UCLA Law Review Vol. 60, Discourse
posted by UCLA Law Review
Volume 60, Discourse
Discourse
May 3, 2013 at 10:01 pm
Posted in: Book Reviews, Constitutional Law, Cyber Civil Rights, Cyberlaw, Law Rev (UCLA), LGBT, Supreme Court
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Computer Crime Law Goes to the Casino
posted by James Grimmelmann
Wired’s Kevin Poulsen has a great story whose title tells it all: Use a Software Bug to Win Video Poker? That’s a Federal Hacking Case. Two alleged video-poker cheats, John Kane and Andre Nestor, are being prosecuted under the Computer Fraud and Abuse Act, 18 U.S.C. § 1030. Theirs is a hard case, and it is hard in a way that illustrates why all CFAA cases are hard.
May 2, 2013 at 1:45 pm
Posted in: Criminal Law, Cyberlaw, Uncategorized
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Are in-person academic communities luxury goods?
posted by Aaron Saiger
Since I began posting as a guest on Concurring Opinions at the beginning of March, “MOOCs” – massively open online courses – have been repeated topic. The blog search engine reports that the term did not appear on the blog until 25 Feb 2013; in the six weeks since, MOOCs have been a topic here, here, here, here, here, here, and, in Deven Desai’s interesting post two days ago, here. Deven says, and I agree, that the aggregation of students together inside an immersive academic, learning community is a real good, and one that cannot be duplicated by a set of MOOCs. But the question MOOCs make pressing is how to value that good, once it can be unbundled from training in the classroom. Nannerl Keohane, in a recent review in Perspectives on Politics (11:1, March 2013, p.318), says that “online education … is the easiest and cheapest way to learn a variety of subjects, especially useful ones,” and describes it is the contemporary analogue of “mutual-aid societies and lyceums.” This seems apt.
University insiders like to say that even unbundled academic community is indispensable, and should be subsidized by both state and university. I suspect that the marketplace will put a much lower value on it. State legislators, ever strapped for cash, will likely do so as well. There will still be a market for 24/7, bricks-and-mortar academic communities; but the online availability of downmarket, imperfect, but genuine partial substitutes will mark such communities more clearly as luxury goods. Once such luxuries are no longer inexorably bundled with direct instruction, the argument that they still deserve state or even philanthropic subsidy is not, it seems to me, a slam-dunk.
Deven posted that the key question is how to “leverage MOOCs and other technology to improve the way education is delivered while not offering only the virtual world” but also social context to those not in the luxury-goods market. Another way of phrasing that question is to ask whether there is a mid-market good, somewhere between the aggregation of naked MOOCs and the bricks-and-mortar private college, that could command interest in the marketplace and justify third-party subsidies. What features of the “code” of online courses – the way that they are presented, taught, bundled together, and converted into credentials – might be adjusted to create a closer approximation of an immersive community, without sacrificing the advantages virtual teaching offers in terms of access over distance, asynchronicity, economies of scale, and cost?
April 10, 2013 at 1:15 pm
Posted in: Cyberlaw, Education
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The school of the future: request for input
posted by Aaron Saiger
This post is a nerd crowdsourcing request. As a guest blogger I don’t know my audience as well as I might, but I am heartened by the presence of “science fiction” among the options my hosts give me for categorizing my posts; and my teenager assures me that “nerd” is a compliment.
As several of my earlier posts suggest, I am interested in the impact of virtual technology upon K-12 schooling; and one thing I have been doing in my spare time is looking at literary accounts, highbrow and low, of what schooling in the future might look like. A colleague gave me Ernest Kline’s recent Ready Player One, which imagines school in a fully virtualized world that looks a lot like the school I went to, complete with hallways, bullies, and truant teachers – but the software allows the students to mute their fellows and censors student obscenity before it reaches the teachers’ interfaces. Another colleague reminded me of Asimov’s 1951 The Fun They Had, where the teacher is mechanical but the students still wiggly and apathetic. On the back of a public swapshelf, I found the Julian May 1987 Galactic Milieu series, which imagines brilliant children, all alone on faraway planets, logging on with singleminded seriousness to do their schoolwork all by their lonesomes. And my daughter gave me Orson Scott Card’s famous Ender’s Game, where the bullying is more educative than the mathematics, and scripted by the adults much more carefully.
That seems like an extensive list but really it’s not, and I was never a serious sci-fi person. If anyone is willing to post in the comments any striking literary accounts of schooling in the future, I’d be grateful.
March 31, 2013 at 5:11 pm
Posted in: Book Reviews, Cyberlaw, Education, Science Fiction
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The child, not the school
posted by Aaron Saiger
The Indiana vouchers program I posted about earlier, significant on its own, also partakes of a trend. The New York Times gets it:
A growing number of lawmakers across the country are taking steps to redefine public education, shifting the debate from the classroom to the pocketbook. Instead of simply financing a traditional system of neighborhood schools, legislators and some governors are headed toward funneling public money directly to families, who would be free to choose the kind of schooling they believe is best for their children, be it public, charter, private, religious, online or at home.
In particular, the Times is right that what is sought here is redefinition. Once states established and supported institutions – public schools – that parents could take or leave, so long as they educated their children somehow. The new paradigm has states instead provide a quantum of funding earmarked for each child, that parents can deploy at any educational institution of their choosing. The fact that the aid attaches to the child and follows her to her family’s chosen school is much more important than the various labels ascribed to the funding and/or the institutional provider – public, private, charter, voucher.
As people learn to function within, and get used to, this new paradigm, they will stop thinking of educational politics as the way to create good public schools, and start thinking of it in terms of how big the aid pie is and how it gets divided up. Whether a school is public or private, online or bricks-and-mortar, religious or not – these stop being political questions and start being questions that markets will resolve through supply and demand. Read the rest of this post »
March 28, 2013 at 10:26 pm
Tags: charter schools, vouchers
Posted in: Administrative Law, Constitutional Law, Cyberlaw, Education
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Driverless Cars May Avoid Accidents, But Not Headlines
posted by Ryan Calo
As Deven Desai points out yesterday, driverless cars could bring a variety of benefits. For instance: driverless cars may be much safer than human drivers. Human error accounts for an enormous percentage of driving fatalities, which number in the tens of thousands. In a “perfect,” post-driver world, the circle of fatalities caused by vehicles would simply shrink. The resulting diagram would look something like this:
March 18, 2013 at 5:47 pm
Tags: Robotics
Posted in: Cyberlaw, Uncategorized
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Netflix, Facebook, and Social Sharing
posted by Deven Desai
Just as Neil Richards’s The Perils of Social Reading (101 Georgetown Law Journal 689 (2013)) is out in final form, Netflix released its new social sharing features in partnership with that privacy protector, Facebook. Not that working with Google, Apple, or Microsoft would be much better. There may be things I am missing. But I don’t see how turning on this feature is wise given that it seems to require you to remember not to share in ways that make sharing a bit leakier than you may want.
Apparently one has to connect your Netflix account to Facebook to get the feature to work. The way it works after that link is made poses problems.
According to SlashGear two rows appear. One is called Friends’ Favorites tells you just that. Now, consider that the algorithm works in part by you rating movies. So if you want to signal that odd documentaries, disturbing art movies, guilty pleasures (this one may range from The Hangover to Twilight), are of interest, you should rate them highly. If you turn this on, are all old ratings shared? And cool! Now everyone knows that you think March of the Penguins and Die Hard are 5 stars. The other button:
is called “Watched By Your Friends,” and it consists of movies and shows that your friends have recently watched. It provides a list of all your Facebook friends who are on Netflix, and you can cycle through individual friends to see what they recently watched. This is an unfiltered list, meaning that it shows all the movies and TV shows that your friends have agreed to share.
Of course, you can control what you share and what you don’t want to share, so if there’s a movie or TV show that you watch, but you don’t want to share it with your friends, you can simply click on the “Don’t Share This” button under each item. Netflix is rolling out the feature over the next couple of days, and the company says that all US members will have access to Netflix social by the end of the week.
Right. So imagine you forget that your viewing habits are broadcast. And what about Roku or other streaming devices? How does one ensure that the “Don’t Share” button is used before the word goes out that you watched one, two, or three movies on drugs, sex, gay culture, how great guns are, etc.?
As Richards puts it, “the ways in which we set up the defaults for sharing matter a great deal. Our reader records implicate
our intellectual privacy—the protection of reading from surveillance and interference so that we can read freely, widely, and without inhibition.” So too for video and really any information consumption.
March 17, 2013 at 6:02 pm
Posted in: Anonymity, Cyberlaw, First Amendment, Privacy, Privacy (Consumer Privacy), Technology, Web 2.0
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MOOCs in law schools
posted by Aaron Saiger
Last week both Frank and I blogged about the MOOC, the “massive open online course.” Also last week a substantial and prominent group of academics posted an open letter to the ABA that urged legal educators to consider, among other reforms, “building on the burgeoning promises of internet-distance education.” (The letter garnered positive press in diverse fora.) Might the MOOC platform be part of that “promise”?
March 14, 2013 at 10:53 am
Tags: MOOC
Posted in: Cyberlaw, Education, Innovation, Law School (Teaching), Teaching
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Cyber-charter schools and religious education
posted by Aaron Saiger
I wrote a few days ago about the rise of the cyber-charter school, and its potential to unsettle constitutional and statutory regimes that govern K-12 education. Right now I am finishing off an article that discusses this with respect to religion. A private religious school is not allowed to operate unless it meets state requirements for all private schools, which include minimum standards for the teaching of secular subjects like math and history. But religious schools must bear the cost of that secular instruction, even though their students would receive similar instruction for free were they to enroll in public school. (States may elect to provide various kinds of aid to religious private schools at the margins, but not to the extent of absorbing the costs of secular instruction.) This minimizes interpenetration between the state-funded public school sector and the religious, private-school sector. It also makes religious schooling more expensive than it otherwise would be.
But consider a religious private school that, rather than offering secular education itself, facilitates the enrollment of its students in a state-funded cyber-charter. The instructional program of the cyberschool is completely secular. But many cyber-charters are asynchronous as well as untethered to place; students may log into school when and from where they please. So why not from inside a religious establishment? Under this model, religious school students pursue their secular studies under the physical supervision of religious teachers but the intellectual supervision of the secular charter school operators. The religious school pays for the supervision but the secular one for the teaching. So (and here I am paraphrasing an earlier piece of mine), a religious teacher might work with half the class on some religious topic while the other half, on its own for the moment, engages in secular cyber-study under the same teacher’s passive supervision. Or a cleric might begin a 45-minute English lesson with a prayer—right before secular studies begin—or interrupt a cyber-biology lesson to admonish students that the material that they are covering is a tissue of lies.
The religious school not only saves a fair bit of money by this approach, savings it can pass on to its customers, but it engineers the kind of merger between publicly funded secular education and privately funded religious schooling that our system, until now, has gone to some lengths to prohibit. But I can identify no legal problem with a religious school adopting this strategy. Unlike state aid for secular instruction in religious schools, which raises real risks either of religious schools repurposing secular funds to religious ends or heavy-handed state involvement in quotidian regulation of religious schools’ operations, cyberteaching is 100% secular and under secular state control. Conceptually its use by the religious school is very similar to such a school’s use of a public library, or of state-provided maps or films. Indeed, I think it would be unconstitutional to allow students to log on to cyberschool anywhere and anytime except while under the physical supervision of a religious teacher. It would surely be unconstitutional to prohibit religious teachers from putting their own gloss, on their own time, upon what the students are learning in their secular classes.
But logistically the model is something very new. It creates a religious school whose secular program is state-funded and largely state-directed, but whose scheduling and context is in religious hands.
Short of abolishing cybercharters (which some states have done) can such initiatives be blocked? If not, is that a reason to abolish them? Or might it be acceptable, or even welcome, that the internet can create a new kind of religious pluralism in American education, where secular schooling remains under secular direction but which lacks the firm wall between its pursuit and the acquisition of religious education?
March 8, 2013 at 4:33 pm
Posted in: Cyberlaw, Education
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Virtual Schooling in the K-12 sector
posted by Aaron Saiger
Lots of people are talking about the accelerating penetration of virtual platforms in the higher education sector. It’s of course unknown whether the massive open online course (MOOC) will be the vector that transforms traditional higher ed the way that so many other industries are being transformed by interconnectivity. But it seems clear that there will be some vector. (I got my first ad for a law school MOOC this week.)
Virtuality poses two basic challenges to higher education. The first is about pedagogy: What might be gained, and what lost, from shifting from a bricks-and-mortar learning environment to a virtual one? The second is about money and institutions: What happens to the business model of colleges and universities as virtual platforms become cheaper, easier to access, and increasingly popular?
Less discussed but potentially just as important is the penetration of virtuality into K-12 ed. Cyber-charter schools are becoming ubiquitous, enrolling tens of thousands of children. Several states have created virtual school districts. In Florida, I’m told, you cannot graduate from high school without taking at least one virtual course.
March 5, 2013 at 7:03 pm
Tags: schools
Posted in: Cyberlaw, Education, Uncategorized
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Is Forensics Law?
posted by Ryan Calo
I’ve blogged on these pages before about the claim, popularized by Larry Lessig, that “code is law.” During the Concurring Opinions symposium on Jonathan Zittrain’s 2010 book The Future of The Internet (And How To Stop It), I cataloged the senses in which architecture or “code” is said to constitute a form of regulation. “Primary” architecture refers to altering a physical or digital environment to stop conduct before it happens. Speed bumps are a classic example. “Secondary” architecture instead alters an environment in order to make conduct harder to get away with—for instance, by installing a traffic light camera or forcing a communications network to build an entry point for law enforcement. Read the rest of this post »
March 3, 2013 at 7:37 pm
Posted in: Amazon, Architecture, Articles and Books, Conferences, Cyberlaw, Uncategorized
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“The Creditor Was Always Right”
posted by Frank Pasquale
What would a world of totally privatized justice look like? To take a more specific case—imagine a Reputation Society where intermediaries, unbound by legal restrictions, could sort people as wheat or chaff, credit-worthy or deadbeat, reliable or lazy?
We’re well on our way to that laissez-faire nirvana for America’s credit bureaus. While they seem to be bound by FCRA and a slew of regulations, enforcement is so wan that they essentially pick and choose the bits of law they want to follow, and what they’d like to ignore. That, at least, is the inescapable conclusion of a brief but devastating portrait of the bureaus on 60 Minutes. Horror stories abound regarding the bureaus, but reporter Steve Kroft finds their deeper causes by documenting an abandonment of basic principles of due process:
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February 19, 2013 at 8:47 pm
Posted in: Consumer Protection Law, Corruption, Cyberlaw, Sociology of Law, Technology
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Why We Need a Federal Criminal Law Response to Revenge Porn
posted by Mary Anne Franks
As promised in the comments section of my last post, I offer in this post the outline of my proposal to effectively combat revenge porn. A few preliminary notes: one, this is very much a work in progress as well as being my first foray into drafting legislative language of any kind. Two, a note about terminology: while “revenge porn” is an attention-grabbing term, it is imprecise and potentially misleading. The best I have come up with as a replacement is “non-consensual pornography,” so that is the term I will use throughout this post. I would be interested to hear suggestions for a better term as well as any other constructive thoughts and feedback.
I want to emphasize at the outset that the problem of non-consensual pornography is not limited to the scenarios that receive the most media attention, that is, when A gives B (often an intimate partner) an intimate photo that B distributes without A’s consent. Non-consensual pornography includes the recording and broadcasting of a sexual assault for prurient purposes and distributing sexually graphic images obtained through hacking or other illicit means. Whatever one’s views on pornography more broadly, it should be a non-controversial proposition that pornography must at a minimum be restricted to individuals who are (1. adults and (2. consenting. Federal and state laws take the first very seriously; it is time they took consent requirements seriously as well.
Before I offer my proposal for what a federal criminal prohibition of non-consensual pornography could look like, I want to explain why looking to federal criminal law is the most appropriate and effective response to the problem. In doing so, I do not mean to suggest that other avenues are illegitimate or ill-advised. I support the use of existing laws or other reform proposals to the extent that they are able to deter non-consensual pornography or provide assistance to victims. That being said, here is my case for why federal criminal law is the best way to address non-consensual pornography, in Q&A form.
February 15, 2013 at 9:51 am
Posted in: Criminal Law, Cyber Civil Rights, Cyberlaw, Legal Theory, Privacy
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Call for Papers: the First Freedom of Expression Scholars Conference at YLS
posted by Danielle Citron
Exciting scholarly opportunity from the Yale Information Society Project:
The Information Society Project at Yale Law School will host the first Freedom of Expression Scholars Conference (FESC) at Yale Law School on May 4-5, 2013. The FESC is sponsored by the Abrams Institute for Freedom of Expression.The conference brings scholars together to discuss their works-in-progress concerning freedom of speech, expression, press, association, petition, assembly, and related issues of knowledge and information policy.
The conference offers participants an opportunity to receive substantive feedback through group discussion. Each accepted paper will be assigned a discussant, who will lead discussion and provide feedback to the author. Participants will be expected to read papers in advance, and to attend the entire conference.
Participation in the conference is by invitation only. Titles and abstracts of papers should be submitted electronically to bryan.choi@yale.edu no later than February 22, 2013. Those interested in serving as discussants should also contact bryan.choi@yale.edu. Workshop versions of papers are due on April 5, 2013 so that they can be circulated to people attending the conference.
January 31, 2013 at 12:31 pm
Posted in: Cyberlaw, First Amendment
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Revenge Porn Site Operators and Federal Criminal Liability
posted by Danielle Citron
My recent post offered a potential amendment to Section 230 of the CDA that would exempt from the safe harbor operators whose sites are primarily designed to host illegal activity. Even without such legal change, cyber cesspool operators could face criminal liability if prosecutors took matters seriously. Section 230 does not provide a safe harbor to federal criminal charges. Consider revenge porn operator Hunter Moore’s statement to the press (Forbes’s Kashmir Hill and Betabeat’s Jessica Roy) that, on his new site, he will overlay maps of individuals’ homes next to their naked pictures and social media accounts (if he does not like them). If Moore is serious, he might open himself up to criminal charges of aiding and abetting cyber stalking. Congress, in its 2006 reauthorization of the Violence Against Women Act (VAWA), banned the use of any “interactive computer service” to engage in a “course of conduct” that places a person in another state in reasonable fear of serious bodily injury or death or that is intended to cause, and causes, a victim to suffer substantial emotional distress. 18 U.S.C.A. 2261A(2) (2012). As the Executive Director of the National Center for Victims of Crime explained in congressional testimony:
[S]talkers are using very sophisticated technology . . . —installing spyware on your computer so they can track all of your interactions on the Internet, your purchases, your e-mails and so forth, and using that against you, forwarding e-mails to people at your job, broadcasting your whereabouts, your purchases, your reading habits and so on, or installing GPS in your car so that you will show up at the grocery store, at your local church, wherever and there is the stalker and you can’t imagine how the stalker knew that you were going to be there. . . . this legislation amends the statute so that prosecutors have more effective tools, I think, to address technology through VAWA.
Congress ought to consider passing laws that criminalize the operation of sites designed to facilitate the posting of nude photographs without subjects’ consent, along the lines of state invasion of privacy laws. States like New Jersey prohibit the posting of someone’s nude or partially nude images without his or her consent if the images were recorded in a place where a reasonable person would enjoy an expectation of privacy. The Senate Judiciary Committee recently approved a bill that makes it a crime to make an online app whose primary use is to facilitate cyber stalking. The next important step is to criminalize sites doing the same.
Of course, laws will have limited coercive and expressive impact if they are never enforced. As the group End Revenge Porn rightly notes, “State police argue that the crime is occurring on the internet, which therefore crosses state lines and is out of their jurisdiction. The FBI claim that these cases are civil and/or do not threaten national security and should therefore should be handled solely by lawyers.” Changing those social attitudes and legal solutions are key. Advocacy groups like Without My Consent , lawyers, law professors like Mary Anne Franks, see here, Ann Bartow, see here, and Derek Bambauer, see here, activists like Jill Filipovic and Charlotte Laws, and most recently victims behind Women Against Revenge Porn and End Revenge Porn are working hard on this score. One might say that their work is part of an emerging cyber civil rights movement. (Check out Professor Franks’s important commentary about revenge porn on HuffPo Live). Lucky for us at CoOp, Professor Franks will be joining us next month as a guest blogger. I will be working hard to finish my book Hate 3.0: The Rise of Discriminatory Online Harassment and How to Stop It (forthcoming Harvard University Press) and working with Professor Franks on non-consensual pornography, so more to come.
January 30, 2013 at 1:09 pm
Posted in: Current Events, Cyber Civil Rights, Cyberlaw, Privacy, Privacy (Gossip & Shaming)
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The Importance of Section 230 Immunity for Most
posted by Danielle Citron
Why leave the safe harbor provision intact for site operators, search engines, and other online service providers do not attempt to block offensive, indecent, or illegal activity but by no means encourage or are principally used to host illicit material as cyber cesspools do? If we retain that immunity, some harassment and stalking — including revenge porn — will remain online because site operators hosting it cannot be legally required to take them down. Why countenance that possibility?
Because of the risk of collateral censorship—blocking or filtering speech to avoid potential liability even if the speech is legally protected. In what is often called the heckler’s veto, people may abuse their ability to complain, using the threat of liability to ensure that site operators block or remove posts for no good reason. They might complain because they disagree with the political views expressed or dislike the posters’ disparaging tone. Providers would be especially inclined to remove content in the face of frivolous complaints in instances where they have little interest in keeping up the complained about content. Take, as an illustration, the popular newsgathering sites Digg. If faced with legal liability, it might automatically take down posts even though they involve protected speech. The news gathering site lacks a vested interest in keeping up any particular post given its overall goal of crowd sourcing vast quantities of news that people like. Given the scale of their operation, they may lack the resources to hire enough people to cull through complaints to weed out frivolous ones.
Sites like Digg differ from revenge porn sites and other cyber cesspools whose operators have an incentive to refrain from removing complained-about content such as revenge porn and the like. Cyber cesspools obtain economic benefits by hosting harassing material that may make it worth the risk to continue to do so. Collateral censorship is far less likely—because it is in their economic interest to keep up destructive material. As Slate reporter and cyber bullying expert Emily Bazelon has remarked, concerns about the heckler’s veto get more deference than it should in the context of revenge porn sites and other cyber cesspools. (Read Bazelon’s important new book Sticks and Stones: Defeating the Culture of Bullying and Rediscovering the Power of Character and Empathy). It does not justify immunizing cyber cesspool operators from liability.
Let’s be clear about what this would mean. Dispensing with cyber cesspools’ immunity would not mean that they would be strictly liable for user-generated content. A legal theory would need to sanction remedies against them. Read the rest of this post »
January 25, 2013 at 4:10 pm
Posted in: Cyber Civil Rights, Cyberlaw, Google and Search Engines, Privacy (Consumer Privacy), Privacy (Gossip & Shaming), Technology, Web 2.0
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Revenge Porn and the Uphill Battle to Pierce Section 230 Immunity (Part II)
posted by Danielle Citron
Plaintiffs’ lawyers have some reason to think that they can convince courts to change their broad-sweeping view of Section 230. In the rare case, courts have pierced the safe harbor, though not because the site operators failed to engage in good faith attempts to protect against offensive or indecent material. In 2011, a federal district court permitted a woman to sue the site operator of the Dirty.com for defamation on the grounds that Section 230 is forfeited if the site owner “invites the posting of illegal materials or makes actionable postings itself.” Sarah Jones v. Dirty World Entertainment Recordings LLC, 766 F. Supp.2d 828, 836 (E.D. Kentucky 2011).
That trial judge relied on a Ninth Circuit decision, Fair Housing Council v. Roommates.com, which involved a classified ad service that helps people find suitable roommates. To sign up for the site’s service, subscribers had to fill out an online questionnaire that asked questions about their gender, race, and sexual orientation. One question asked subscribers to choose a roommate preference, such as “Straight or gay males,” only “Gay” males, or “No males.” Fair housing advocates sued the site, arguing that its questionnaires violated federal and state discrimination laws. The Ninth Circuit found that Section 230 failed to immunize the defendant site from liability because it created the questions and choice of answers and thus became the “information content provider.” The court ruled that since the site required users to answer its questions from a list of possible responses of its choosing, the site was “the developer, at least in part, of that information.” Each user’s profile page was partially the defendant’s responsibility because every profile is a “collaborative effort between [the site] and the subscriber.”
As the Ninth Circuit held (and as a few courts have followed), Section 230 does not grant immunity for helping third parties develop unlawful conduct. The court differentiated the defendant’s site from search engines whose processes might be seen as contributing to the development of content, its search results. According to the court, ordinary search engines “do not use unlawful criteria to limit the scope of searches conducted on them” and thus do not play a part in the development of unlawful searches. The court endorsed the view that sites designed to facilitate illegal activity fell outside Section 230’s safe harbor provision.
Here is the rub. To reach its conclusion, the Ninth Circuit essentially had to rewrite the statute, which defines information content providers as those responsible for the “creation and development of information provided through the Internet,” not the creation and development of illegal information. Read the rest of this post »
January 25, 2013 at 3:30 pm
Posted in: Anonymity, Cyber Civil Rights, Cyberlaw, Privacy, Privacy (Gossip & Shaming)
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“Kicking the Tires” is not “Looking Under the Hood”
posted by Frank Pasquale
Celebrated in the tech press only a week ago, the FTC inaction (and non-explanation of its inaction) with respect to search bias concerns is already starting to curdle. The FT ran a front page headline titled “Europe Takes Tough Stance on Google.” Another story included this striking comment from the EU’s competition chief:
Almunia insists that the Federal Trade Commission decision will be “neither an obstacle [for the European Commission] nor an advantage [for Google]. You can also think, well, this European authority, the commission, has received a gift from the American authorities, given that now every result they will get will be much better than the conclusions of the FTC,” he said with playful confidence. “Google people know very well that they need to provide results and real remedies, not arguments or comparisons with what happened on the other side [of the Atlantic].”
In response to allegations of search bias, Google has essentially said, “Trust us.” And at the end of its investigation into the potential bias, the FTC has essentially said the same. One public interest group has already put in a FOIA request for communications between Google and the FTC. Consumer Watchdog has requested a staff report that was reported to have recommended more robust action. Will Google, an advocate of openness in government and the internet generally, hold firm to its professed principles and commend those requests?
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January 11, 2013 at 10:28 am
Posted in: Antitrust, Cyberlaw, Google & Search Engines, Government Secrecy, Political Economy, Privacy (Electronic Surveillance), Technology
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Forget Facial Recognition, Try Tattoos
posted by Deven Desai
Imagine that your cool CSI, NCIS, Mentalist, (fill in the procedural (as in cop show, not law), detective sees a tattoo on someone, but no face. She wants to know who that person was. Quick! Check the database! Turns out MSU is developing such a thing. The article admits that a nationwide database is not on the immediate horizon, but the FBI and local agencies want it. The piece has some cultural overtones too. The researcher Anil Jain noted that one could ask
“Is this tattoo connected to a gang? Who were the previous individuals who were arrested with the same tattoo and other such information?” Jain said. “And then right away you have some information about this person. You may not know his name – the tattoo is not a unique identifier – but it can narrow down the list of identities for this particular tattoo.”
One can start to see where a person fits, or used to fit, into a social setting. Then again someone may get the tattoo just for kicks. Hmm, maybe intellectual property law will foil this one? Remember the Hangover II and the tattoo suit? I wonder whether the database will face cease and desist letters from alleged copyright and or trademark holders. Or maybe they will support the database so they can enforce their rights!
Seriously, however, I think that the use of tattoos to identify people has an established history. I am not sure whether that is just a claim in books and film. But this project seems to lend credence to the idea that those marks really do follow you forever.
November 15, 2012 at 9:44 pm
Posted in: Criminal Law, Cyberlaw, Technology
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BRIGHT IDEAS: Werbach and Hunter on For the Win: How Game Thinking Can Revolutionize Your Business
posted by Deven Desai
This Bright Ideas post looks at Kevin Werbach and Dan Hunter’s new book, For the Win: How Game Thinking Can Revolutionize Your Business. I have posted about it, but Kevin and Dan were gracious enough to answer some questions. We go into what is gamification, the differences between internal and external uses of the technique, how it relates to super-crunching, and the ethical and legal implications of the technique.
Kevin and Dan, you have drilled into an area, gamification, that seems almost arcane, a technique known to initiates. Why do it?
[KW] We actually think gamification is quite relevant for a broad range of audiences. First of all, video games have a huge impact on our culture. The games industry generates more revenue annually than Hollywood does at the box office. According to a Pew survey, 97% of American teeagers play video games, and it’s not just young people: the Entertainment Software Association reports that the average age of a gamer is 30, with almost half of them women. We can dismiss video games the way we used to dismiss social networking… and e-commerce before that… and the Internet before that… or we can look at why they are so powerful and apply those lessons in other contexts.
Second, the core goal of gamification is motivation. Think about all the situations where motivation matters: at work, at home, as consumers, in legal compliance, in social activism, and in collective action, to name a few. In all these cases, greater engagement drives material results. If there were motivational techniques that were proven in real-world businesses, consistent with decades of psychological research, and synergistic with big data and other leading-edge technology trends, wouldn’t you want to understand them?
And third, gamification is happening. It’s a rapidly growing business trend among startups, Fortune 500 companies, non-profits, and even government agencies. It raises a host of significant legal, operational, and ethical issues, as well as a variety of practical business concerns. We felt that my work on emerging technology and policy trends through the Supernova conference, and Dan’s scholarship on virtual worlds and background in cognitive psychology, gave us a unique ability to tackle these questions in a serious way. That’s why we put together the first gamification course at Wharton, and wrote For the Win as business guide to this emerging field.
OK, so what is gamification?
[KW] Gamification means applying design techniques from video games to business and other problems. In other words, it’s the process of motivating customers, employees, and communities by thinking like a game designer. It doesn’t mean turning everything into a game. Quite the contrary! Gamification involves incorporating elements of games into existing activities, the way Nike weaves levels and awards into its Nike+ system, or Microsoft motivated employees to review half a million Windows 7 dialogue boxes for localization errors with a competition among offices.
When you look at it that way, the basic concept of gamification is pretty simple, but doing it well is hard. Even experienced game designers often create games that aren’t much fun. Executing gamification effectively requires a combination of skills and knowledge, which we describe in For the Win.
Right. I see games are important in that they are big business and a big part of many folks’ lives. Let’s talk a little more about motivation. Is this approach a sort of applied behavioral economic one? Someone identifies levers and then builds systems to nudge or indeed shift the way others engage and behave?
November 15, 2012 at 9:30 pm
Posted in: Behavioral Law and Economics, Bright Ideas, Cyberlaw, Innovation, Technology, Web 2.0
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