Archive for the ‘Google and Search Engines’ Category

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   Print This Post   5 Comments

Stanford Law Review Online: Software Speech

posted by Stanford Law Review

The Stanford Law Review Online has just published a Note by Andrew Tutt entitled Software Speech. Tutt argues that current approaches to determining when software or speech generated by software can be protected by the First Amendment are incorrect:

When is software speech for purposes of the First Amendment? This issue has taken on new life amid recent accusations that Google used its search rankings to harm its competitors. This spring, Eugene Volokh coauthored a white paper explaining why Google’s search results are fully protected speech that lies beyond the reach of the antitrust laws. The paper sparked a firestorm of controversy, and in a matter of weeks, dozens of scholars, lawyers, and technologists had joined the debate. The most interesting aspect of the positions on both sides—whether contending that Google search results are or are not speech—is how both get First Amendment doctrine only half right.

He concludes:

By stopping short of calling software “speech,” entirely and unequivocally, the Court would acknowledge the many ways in which software is still an evolving cultural phenomenon unlike others that have come before it. In discarding tests for whether software is speech on the basis of its literal resemblance either to storytelling (Brown) or information dissemination (Sorrell), the Court would strike a careful balance between the legitimate need to regulate software, on the one hand, and the need to protect ideas and viewpoints from manipulation and suppression, on the other.

Read the full article, Software Speech at the Stanford Law Review Online.

  November 15, 2012 at 10:18 am  Tags: Constitutional Law, Cyber Civil Rights, First Amendment, search engines, technology, videogames  Posted in: Constitutional Law, Cyber Civil Rights, Cyberlaw, First Amendment, Google & Search Engines, Google and Search Engines, Law Rev (Stanford), Supreme Court, Technology   Print This Post   3 Comments

Some more on ISPs and 6 Strikes – Where’s The Citizen Policing?

posted by Deven Desai

I wrote about the Six Strikes plan earlier today. I wanted to add a call for transparency on download speeds so the average citizen could police the penalties. The Wired report noted that responses “might include reducing internet speeds.” Given the problems with ISPs providing clear and consistent speeds, it seems to me that if they can reduce speeds in the name of copyright enforcement, they should also be open about what those speeds are. Google’s speed test may be useful and its M-Lab may play a role (M-Lab claims “Measurement Lab (M-Lab) is an open, distributed server platform for researchers to deploy Internet measurement tools. The goal of M-Lab is to advance network research and empower the public with useful information about their broadband connections. By enhancing Internet transparency, M-Lab helps sustain a healthy, innovative Internet.” Hmm. I wonder whether Google’s foray into broadband will not only show the speeds easily but jump onto the ISP copyright enforcement bandwagon. I suppose that would be a consistent approach given the copyright/search results policy, but it may be one that starts to indicate that the alleged tech industry/online activist solidarity is well, alleged.

  October 12, 2012 at 2:49 am   Posted in: DRM, Google and Search Engines, Intellectual Property, Technology, Web 2.0   Print This Post   No Comments

SOPA, PIPA and some truth about activism

posted by Deven Desai

As folks start to claim they saved the Internet and rally for alleged ways to keep the Internet open for all, I want to call out something Rep. Issa said at Stanford in April. Step one, and to me the but-for moment, in stopping SOPA and PIPA was the security and CS community speaking (which was rare) about just how dangerous (“A potpourri of dumb things” – Issa at around 8:15) the bills were. Without that the activism probably could never have gotten in place. Furthermore, as I noted elsewhere, science can shift. Science is, by definition, amoral. If you build it, it will work. So expect the copyright industry to demand new things. Expect them to hire and fund studies about how to get what they want without going using “A potpourri of dumb things.” And note that Google’s recent shift in approach regarding links and alleged pirate sites shows that things change.

This is not an apolitical moment. It is deeply political, but pretends that it is not about a power shift. When Internet and tech companies swear they are there for you, be skeptical. In some senses they are. Many folks I know at Google really are interested in serving users. Many are also scientists who will pursue, as they should, the truth of what is possible. The current bus-stop tour by Reddit’s co-founder, Alexis Ohanian is political. Per the Washington Post, for him, “[T]he key issue is getting Internet openness on the minds and into the talking points of politicians in this election.”

What does openness mean? What are the politics of openness? Why do Facebook, Google, Reddit want openness? South by Southwest looks like it may have panel on disrupting DC. The description reads like an evangelic rally (a good tip that thought is replaced by faith). But to its big credit (except for saying the questions will be answered), the panel looks at some decent issues:

1. The Industrial Revolution brought about a political realignment that created the existing party system. Can the Internet do the same?
2. Beyond “openness,” what are the essential characteristics that define the Internet’s political identity? Market oriented or socially conscious? Libertarian or progressive? (Or all of the above?)
3. Politically, does the Internet most resemble an interest group (like big business or labor unions), a movement, or something we haven’t seen before?
4. Is Internet culture weakening partisanship — or making it worse?
5. Technology drives growth, but some say it also kills jobs. How do we make sure that the benefits of the Internet are widespread? Is there a consistent political viewpoint here among Internet activists, or does this break down along typical political lines?

I doubt one panel can tackle all these questions. Much will depend on the panelists and whether the panel is really open in that it has voices other than those who all agree. Nonetheless, one thing that is missing is a deeper look at the power structures and history that inform the issue. For example, the idea of realigning parties still relies on parties. And, there is an essentialism to Internet identity that is ironic at best and willfully blind and lacking irony at worst.

Have I abandoned my Google brothers and sisters? Oh perhaps, but I don’t think so. These questions were ones I raised while there. Some disliked them. Some took them seriously. The people I respected and loved the most pushed me to dig into these points. Like society, Google has many people with many views and agendas. That’s the point. With all companies and all people asserting truth, administer several grains of salt, reflect, (maybe add some lime and tequila first). For those wishing a good book on the problems with saying we know where we are going, check Professor Wendy Brown’s work, especially Politics Out of History.

  September 2, 2012 at 3:11 pm   Posted in: Cyberlaw, Google & Search Engines, Google and Search Engines, Innovation, Intellectual Property, Technology, Web 2.0   Print This Post   No Comments

Google Says “No, No” to Mr. or Ms. Pirate; What About Hate Speech?

posted by Deven Desai

Fred von Lohmann posted that Google has changed its algorithm. Now “it’ll start generally downranking sites that receive a high volume of copyright infringement notices from copyright holders.” The Verge reports that:

because its existing copyright infringement reporting system generates a massive amount of data about which sites are most frequently reported — the company received and processed over 4.3 million URL removal requests in the past 30 days alone, more than all of 2009 combined. Importantly, Google says the search tweaks will not remove sites from search results entirely, just rank them lower in listings. Removal of a listing will still require a formal request under the existing copyright infringement reporting system — and Google is quick to point out that those unfairly targeted can still file counter-notices to get their content reinstated into search listings.

The data-driven basis makes sense to me. So what other areas could be monitored and adjusted? I disagree with the idea that search engines should take on policing roles for certain speech that Danielle Citron and others have urged. But this shift may open the door to more arguments for Google to be a gatekeeper and policer of content. Assuming enough data is available, Google or any data-driven service, could make decisions to include or exclude entries (or shift ranking). Those moves already happen. But the difficult question will now be why or why not act on some issues but not others. James Grimmelman has a work in progress on search and speech that gets into this question. I believe the algorithm issues still control. Nonetheless, by nodding to the copyright industry, Google may be opening the door to further calls to be the Internet’s gatekeeper. Of course, if it does that, others will attack Google for doing just that from competition and other angles.

  August 10, 2012 at 5:25 pm   Posted in: Cyberlaw, Google & Search Engines, Google and Search Engines, Intellectual Property, Technology   Print This Post   No Comments

Automated Arrangement of Information: Speech, Conduct, and Power

posted by Frank Pasquale

Tim Wu’s opinion piece on speech and computers has attracted a lot of attention. Wu’s position is a useful counterpoint to Eugene Volokh’s sweeping claims about 1st Amendment protection for automated arrangements of information. However, neither Wu nor Volokh can cut the Gordian knot of digital freedom of expression with maxims like “search is speech” or “computers can’t have free speech rights.” Any court that respects extant doctrine, and the normative complexity of the new speech environment, will need to take nuanced positions on a case-by-case basis.

Digital Opinions

Wu states that “The argument that machines speak was first made in the context of Internet search,” pointing to cases like Langdon v. Google, Kinderstart, and SearchKing. In each scenario, Google successfully argued to a federal district court that it could not be liable in tort for faulty or misleading results 1) because it “spoke” the offending arrangement of information and 2) the arrangement was Google’s “opinion,” and could not be proven factually wrong (a sine qua non for liability).
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  June 25, 2012 at 12:40 pm   Posted in: Antitrust, Constitutional Law, Consumer Protection Law, First Amendment, Google & Search Engines, Google and Search Engines, Privacy, Technology   Print This Post   4 Comments

Amazon’s Pawns

posted by Frank Pasquale

I sometimes speculate at the end of my copyright class that, years hence, we’ll stop using a statutory supplement and just refer to the Amazon, YouTube, Facebook, etc. service agreements to find sources of legal authority. The cultural power of Google & Facebook gets a lot of media attention, and now Amazon is under renewed scrutiny. Wired highlights the business acumen of Jeff Bezos; Mac McClelland has told the story of the sweat it’s based on. Now The Nation is featuring an intriguing series on the company, with pieces by Robert Darnton, Michael Naumann, and Steve Wasserman (along with the slide show on 10 reasons to avoid Amazon). A few reflections on the series below:

1) Wasserman compiles an array of stats: according to the revised 2012 edition of Merchants of Culture, “in 2011 e-book sales for most publishers were “between 18 and 22 percent.” “Two decades ago, there were about 4,000 independent bookstores in the United States; only about 1,900 remain.” Publishers stand to be disintermediated, since too many have been “complacent, allergic to new ideas, even incompetent.” Amazon stands triumphant:

[By 2011], it had $48 billion in revenue, more than all six of the major American publishing conglomerates combined, with a cash reserve of $5 billion. The company is valued at nearly $100 billion and employs more than 65,000 workers (all nonunion); Bezos, according to Forbes, is the thirtieth wealthiest man in America

The aggregator has triumphed over the aggregated, and its own workers. As exposes revealed, “in one of Amazon’s main fulfillment warehouses in Allentown, Pennsylvania . . . employees risked stroke and heat exhaustion while running themselves ragged [and] [a]mbulances were routinely stationed in the facility’s giant parking lot to rush stricken workers to nearby hospitals.”
Read the rest of this post »

  June 4, 2012 at 9:16 pm   Posted in: First Amendment, Google and Search Engines, Intellectual Property, Political Economy, Technology, Web 2.0   Print This Post   No Comments

Social Search; It’s Might Be Around for a Bit

posted by Deven Desai

Hey! Bing is innovating! It has added social to search based on its relationship with Facebook. Oh wait, Google did that with Google+. So is this innovation or keeping up with the Joneses, err Pages and Brins? I thought this move by MS would happen faster given that FB and MS have been in bed together for some time. So did Google innovate while Microsoft and Facebook imitated? Maybe. Google certainly plays catch-up too. The real questions may turn on who executes and/or can execute better. That seems to be part of the innovation game too.

Facebook is top dog in social; Google in search. The thing they both (with MS lurking in the wings to make a big comeback (an odd thing given how well MS does as it is)) are doing is to take recommendations to a new level (with ads thrown in of course). I have tried logged in search. I must say I was surprised. To be clear, I find there is mainly rot in social network data just as there is in search. Whether I would have used Google+ had I not been at Google is unclear. Probably not. But I did. Then I searched for some law review articles and some basic technology information. WOW. The personal results at the top had links to blog posts by people whom I followed on Google + AND THEY WERE…RELEVANT. Blew my mind. My search time went down and I found credible sources faster. Will that last? Who knows? Someone may find ways to game the system, but the small experiences make me hopeful. Now to Facebook and Bing.

If Google can do well with a much smaller set of users for Google +, Facebook and Bing might do really well. After all, Facebook has the social piece and MS has some search computer science types. Whoever wins here may offer the next thing in search. I like conducting logged out searches and logged in. When logged in, I like the potential for seeing things from friends and people I trust. For example, if I start to be interested in cameras and search gives me posts by friends I’d ask anyway, that is a pretty cool result. I can read the post and call the friend for deeper advice or just use what they posted.

All in this space will, of course, cope with privacy concerns etc. But I think that this new level of relevance has the chance to co-exist with those concerns and users may flock to one of these services to have results well-beyond the current ones in search without social. In other words, let the games continue.

  May 11, 2012 at 10:59 am   Posted in: Cyberlaw, Google & Search Engines, Google and Search Engines, Innovation, Intellectual Property   Print This Post   No Comments

If Infrastructure, then Commons: an analytical framework, not a rule

posted by Brett Frischmann

It is probably worth making it clear that, as I state multiple times in the book, my argument is not “if infrastructure, then commons.” Rather, I argue that if a resource is infrastructure—defined according to functional economic criteria I set forth in the book, then there are a series of considerations one must evaluate in deciding whether or not to manage the resource as a commons. Chapter four provides a detailed analysis of what resources are infrastructure, and chapter five provides a detailed analysis of the advantages and disadvantages of commons management from the perspective of private infrastructure owner (private strategy) and from the perspective of the public (public strategy). Chapters six, seven and eight examine significant complicating factors/costs and arguments against commons management.

After reviewing the excellent posts, it occurred to me that blog readers might come away with the mistaken impression that in the book I argue that the demand side always trumps the supply side or that classifying a resource as infrastructure automatically leads to commons management. That is certainly not the case. I do argue that the demand-side analysis of infrastructure identifies and helps us to better appreciate and understand a significant weight on one side of the scale, and frankly, a weight that is often completely ignored.  Ultimately, the magnitude of the weight and relevant counterweights will vary with the infrastructure under analysis and the context.

In chapter thirteen, I argue that the case for network neutrality regulation—commons management as a public strategy applied in the context of Internet infrastructure—would remain strong even if markets were competitive. In his post, Tim disagreed with this position.  In Tim’s view, competition should be enough to sustain an open Internet, for a few reasons, but mainly because consumers will appreciate (some of) the spillovers that are produced online and will be willing to pay for (and switch to) an open infrastructure, provided that competition supplies options. I replied to his post with some reasons why I disagree. In essence, I pointed out that consumers would not appreciate all of the relevant spillovers because many spillovers spill off-network and thus private demand would still fall short of social demand, and I also noted that I was less confident about his predictions about what consumers would want and how they would react. (My disagreement with Tim about the relevance of competition in the network neutrality context should not be read to mean that competition is unimportant. The point is that the demand-side market failures are not cured by competition, just as the market failures associated with environmental pollution are not cured by competition.)

In my view, the demand side case for an open, nondiscriminatory Internet infrastructure as a matter of public strategy/regulation is strong, and would remain strong even if infrastructure markets were competitive. But as I say at the end of chapter thirteen, it is not dispositive. Here is how I conclude that chapter:

 My objective in this chapter has not been to make a dispositive case for network neutrality regulation. My objective has been to demonstrate how the infrastructure analysis, with its focus on demand-side issues and the function of commons management, reframes the debate, weights the scale in favor of sustaining end-to-end architecture and an open infrastructure, points toward a particular rule, and encourages a comparative analysis of various solutions to congestion and supply-side problems. I acknowledge that there are competing considerations and interests to balance, and I acknowledge that quantifying the weight on the scale is difficult, if not impossible. Nonetheless, I maintain that the weight is substantial. The social value attributable to a mixed Internet infrastructure is immense even if immeasurable. The basic capabilities the infrastructure provides, the public and social goods produced by users, and the transformations occurring on and off the meta-network are all indicative of such value.

 

  April 27, 2012 at 2:04 pm   Posted in: Cyberlaw, Economic Analysis of Law, Google and Search Engines, Infrastructure Symposium, Symposium (Infrastructure), Uncategorized   Print This Post   One Comment

Pakistan Scrubs the Net

posted by Derek Bambauer

Pakistan, which has long censored the Internet, has decided to upgrade its cybersieves. And, like all good bureaucracies, the government has put the initiative out for bid. According to the New York Times, Pakistan wants to spend $10 million on a system that can block up to 50 million URLs concurrently, with minimal effect on network speed. (That’s a lot of Web pages.) Internet censorship is on the march worldwide (and the U.S. is no exception). There are at least three interesting things about Pakistan’s move:

First, the country’s openness about its censorial goals is admirable. Pakistan is informing its citizens, along with the rest of us, that it wants to bowdlerize the Net. And, it is attempting to do so in a way that is more uniform than under its current system, where filtering varies by ISP. I don’t necessarily agree with Pakistan’s choice, but I do like that the country is straightforward with its citizens, who have begun to respond.

Second, the California-based filtering company Websense announced that it will not bid on the contract. That’s fascinating – a tech firm has decided that the public relations damage from helping Pakistan censor the Net is greater than the $10M in revenue it could gain. (Websense argues, of course, that its decision is a principled one. If you believe that, you are probably a member of the Ryan Braun Clean Competition fan club.)

Finally, the state is somewhat vague about what it will censor: it points to pornography, blasphemy, and material that affects national security. The last part is particularly worrisome: the national security trump card is a potent force after 9/11 and its concomitant fallout in Pakistan’s neighborhood, and censorship based on it tends to be secret. There is also real risk that national security interests = interests of the current government. America has an unpleasant history of censoring political dissent based on security worries, and Pakistan is no different.

I’ll be fascinated to see which companies take up Pakistan’s offer to propose…

Cross-posted at Info/Law.

  March 8, 2012 at 3:03 pm   Posted in: Architecture, Current Events, Cyber Civil Rights, Cyberlaw, Google and Search Engines, Intellectual Property, Politics, Privacy (National Security), Social Network Websites, Technology, Web 2.0   Print This Post   One Comment

Symposium on Configuring the Networked Self: Cohen’s Methodological Contributions

posted by Frank Pasquale

Julie Cohen’s extraordinarily illuminating book Configuring the Networked Self makes fundamental contributions to the field of law and technology. In this post, I’d like to focus on methodology and theory (a central concern of Chapters 1 to 4). In another post, I hope to turn to the question of realizing Cohen’s vision of human flourishing (a topic Chapters 9 and 10 address most directly).

Discussions of rights and utility dominate the intellectual property and privacy literatures.* Cohen argues that their appeal can be more rhetorical than substantive. As she has stated:

[T]he purported advantage of rights theories and economic theories is neither precisely that they are normative nor precisely that they are scientific, but that they do normative work in a scientific way. Their normative heft derives from a small number of formal principles and purports to concern questions that are a step or two removed from the particular question of policy to be decided. . . . These theories manifest a quasi-scientific neutrality as to copyright law that consists precisely in the high degree of abstraction with which they facilitate thinking about processes of cultural transmission.

Cohen notes “copyright scholars’ aversion to the complexities of cultural theory, which persistently violates those principles.” But she feels they should embrace it, given that it offers “account[s] of the nature and development of knowledge that [are] both far more robust and far more nuanced than anything that liberal political philosophy has to offer. . . . [particularly in understanding] how existing knowledge systems have evolved, and how they are encoded and enforced.”

A term like “knowledge system” may itself seem very abstract and formal. But Cohen’s work insists on a capacious view of network-enabled forms of knowing. Rather than naturalizing and accepting as given the limits of copyright and privacy law on the dissemination of knowledge, she can subsume them into a much broader framework of understanding where “knowing” is going. That framework includes cultural practices, norms, economics, and bureaucratic processes, as well as law.
Read the rest of this post »

  March 8, 2012 at 12:26 am   Posted in: Configuring the Networked Self Symposium, Google and Search Engines, Privacy, Privacy (Electronic Surveillance), Privacy (National Security)   Print This Post   No Comments

Santorum: Please Don’t Google

posted by Derek Bambauer

If you Google “Santorum,” you’ll find that two of the top three search results take an unusual angle on the Republican candidate, thanks to sex columnist Dan Savage. (I very nearly used “Santorum” as a Google example in class last semester, and only just thought better of it.) Santorum’s supporters want Google to push the, er, less conventional site further down the rankings, and allege that Google’s failure to do so is political biased. That claim is obviously a load of Santorum, but the situation has drawn more thoughtful responses. Danny Sullivan argues that Google should implement a disclaimer, because kids may search on “Santorum” and be disturbed by what they find, or because they may think Google has a political agenda. (The site has one for “jew,” for example. For a long time, the first result for that search term was to the odious and anti-Semitic JewWatch site.)

This suggestion is well-intentioned but flatly wrong. I’m not an absolutist: I like how Google handled the problem of having a bunch of skinheads show up as a top result for “jew.” But I don’t want Google as the Web police, though many disagree. Should the site implement a disclaimer if you search for “Tommy Lee Pamela Anderson”? (Warning: sex tape.) If you search for “flat earth theory,” should Google tell you that you are potentially a moron? I don’t think so. Disclaimers should be the nuclear option for Google – partly so they continue to attract attention, and partly because they move Google from a primarily passive role as filter to a more active one as commentator. I generally like my Web results without knowing what Google thinks about them.

Evgeny Morozov has made a similar suggestion, though along different lines: he wants Google to put up a banner or signal when someone searches for links between vaccines and autism, or proof that the Pentagon / Israelis / Santa Claus was behind the 9/11 attacks. I’m more sympathetic to Evgeny’s idea, but I would limit banners or disclaimers to situations that meet two criteria. First, the facts of the issue must be clear-cut: pi is not equal to three (and no one really thinks so), and the planet is indisputably getting warmer. And second, the issue must be one that is both currently relevant and with significant consequences. The flat earthers don’t count; the anti-vaccine nuts do. (People who fail to immunize their children not only put them at risk; they put their classmates and friends at risk, too.) Lastly, I think there’s importance to having both a sense of humor and a respect for discordant, even false speech. The Santorum thing is darn funny. And, in the political realm, we have a laudable history of tolerating false or inflammatory speech, because we know the perils of censorship. So, keeping spreading Santorum!

Danielle, Frank, and the other CoOp folks have kindly let me hang around their blog like a slovenly houseguest, and I’d like to thank them for it. See you soon!

Cross-posted at Info/Law.

  February 29, 2012 at 5:54 pm   Posted in: Advertising, Architecture, Bright Ideas, Culture, Current Events, Cyberlaw, Education, First Amendment, Google and Search Engines, Humor, Innovation, Just for Fun, Law Talk, Media Law, Politics, Psychology and Behavior, Technology, Web 2.0   Print This Post   7 Comments

Ubiquitous Infringement

posted by Derek Bambauer

Lifehacker‘s Adam Dachis has a great article on how users can deal with a world in which they infringe copyright constantly, both deliberately and inadvertently. (Disclaimer alert: I talked with Adam about the piece.) It’s a practical guide to a strict liability regime – no intent / knowledge requirement for direct infringement – that operates not as a coherent body of law, but as a series of reified bargains among stakeholders. And props to Adam for the Downfall reference! I couldn’t get by without the mockery of the iPhone or SOPA that it makes possible…

Cross-posted to Info/Law.

  February 27, 2012 at 2:14 pm   Posted in: Anonymity, Architecture, Culture, Current Events, Cyberlaw, DRM, Education, Google and Search Engines, Innovation, Intellectual Property, Interviews, Media Law, Movies & Television, Politics, Social Network Websites, Technology, Web 2.0   Print This Post   3 Comments

The Memory Hole

posted by Derek Bambauer

On RocketLawyer’s Legally Easy podcast, I talk with Charley Moore and Eva Arevuo about the EU’s proposed “right to be forgotten” and privacy as censorship. I was inspired by Jeff Rosen and Jane Yakowitz‘s critiques of the approach, which actually appears to be a “right to lie effectively.” If you can disappear unflattering – and truthful – information, it lets you deceive others – in other words, you benefit and they are harmed. The EU’s approach is a blunderbuss where a scalpel is needed.

Cross-posted at Info/Law.

  February 17, 2012 at 12:01 pm   Posted in: Anonymity, Architecture, Civil Rights, Consumer Protection Law, Culture, Current Events, Cyber Civil Rights, Cyberlaw, First Amendment, Google and Search Engines, Innovation, Media Law, Political Economy, Politics, Privacy, Technology, Web 2.0   Print This Post   No Comments

Autonomous Agents and Extension of Law: Policymakers Should be Aware of Technical Nuances

posted by Harry Surden

This post expands upon a theme from Samir Chopra and Lawrence White’s excellent and thought-provoking book – A Legal Theory for Autonomous Artificial Agents.  One question pervading the text: to what extent should lawmakers import or extend existing legal frameworks to cover the activities of autonomous (or partially autonomous) computer systems and machines?   These are legal frameworks that were originally created to regulate human actors.  For example, the authors query whether the doctrines and principles of agency law can be mapped onto actions carried out by automated systems on behalf of their users?  As the book notes, autonomous systems are already an integral part of existing commercial areas (e.g. finance) and may be poised to emerge in others over the next few decades (e.g. autonomous, self-driving automobiles). However, it is helpful to further expand upon one dimension raised by the text: the relationship between the technology underlying autonomous agents, and the activity or results produced by the technology.

Two Views of Artificial Intelligence

The emergence of partially autonomous systems – computer programs (or machines) carrying out activities at least partially in a self-directed way, on behalf of their users, is closely aligned with the field of Artificial Intelligence (AI) and developments therein. (AI is a sub-discipline of computer science.) What is the goal of AI research? There is probably no universally agreed upon answer to this question – as there have been a range of approaches and criteria for systems considered to be successful advances in the field. However, some AI researchers have helpfully clarified two dimensions along which we can think about AI developments. Consider a spectrum of possible criteria under which one might label a system to be a “successful” AI product:

View 1) We might consider a system to be artificially intelligent only if it produces “intelligent” results based upon processes that model, approach or replicate the high-level cognitive abilities or abstract reasoning skills of humans ;or

View 2) We might most evaluate a system primarily based upon the quality of the output it produces – if it produces results that humans would consider accurate and helpful – even if the results or output came about through processes that do not necessarily model , approach, or resemble actual human cognition, understanding, or reasoning.

We can understand the first view as being concerned with creating systems that replicate to some degree something approaching human thinking and understanding, whereas the second is more concerned with producing results or output from computer agents that would be considered “intelligent” and useful, even if produced from systems which likely do not approach human cognitive processes. (Russell and Norvig, Artificial Intelligence: A Modern Approach, 3 Ed, 2009, 1-5). These views represent poles on a spectrum, and many actual positions fall in between. However, this distinction is more than philosophical.  It has implications on the sensibility of extending existing legal doctrines to cover the activities of artificial agents. Let us consider each view briefly in turn, and some possible implications upon law.

View 1 – Artificial Intelligence as Replicating Some or All Human Cognition

The first characterization – that computer systems will be successful within AI when they produce activities resulting from processes approaching the high-level cognitive abilities of humans, is considered an expansive and perhaps more ambitious characterization of the goals of AI. It also seems to be the one most closely associated with the view of AI research in the public imagination. In popular culture, artificially intelligent systems replicate and instantiate – to varying degrees – the thinking facilities of humans (e.g. the ability to engage in abstract thought, carry on an intelligent conversation, or to understand or philosophize concerning concepts at a depth associated with intelligence). I raise this variant primarily to note that despite   (what I believe is a) common lay view of the state of the research- this “strong” vision of AI is not something that has been realized (or is necessarily near realization) within the existing state-of-the art systems that are considered successful products of AI research. As I will suggest shortly, this nuance may not be something within the awareness of lawmakers and judges who will be the arbiters of such decisions concerning systems that are labeled artificially intelligent.  Although AI research has not yet produced artificial human-level cognition, that does not mean that AI research has been unsuccessful.  Quite to the contrary – over the last 20 years AI research has produced a series of more limited, but spectacularly successful systems as judged by the second view.

View 2 – “Intelligent” Results (Even if Produced by Non-Cognitive Processes)

The second characterization of AI is perhaps more modest, and can be considered more “results oriented.”  This view considers a computer system (or machine) to be a success within artificial intelligence based upon whether it produces output or activities that people would agree (colloquially speaking) are “good” and “accurate” and “look intelligent.”  In other words, a useful AI system in this view is characterized by results or output are likely to approach or exceed  that which would have been produced by a human performing the same task.  Under this view, if the system or machine produces useful, human-like results, this is a successful AI machine – irrespective as to whether these results were produced from a computer-based process instantiating or resembling human cognition, intelligence or abstract reasoning.

In this second view, AI “success” is measured based upon whether the autonomous system produces “intelligent” (or useful) output or results.  We can use what would be considered “intelligent” conduct of a similarly situated human as a comparator. If a modern auto-pilot system is capable of landing airplanes in difficult conditions (such as thick fog) at a success rate that meets or exceeds human pilots under similar conditions, we might label it a successful AI system under this second approach. This would be the case even if we all agreed that the autonomous autopilot system did not have a meaningful understanding of the concepts of “airplanes”, “runways”, or “airports.” Similarly, we might label IBM’s Jeopardy playing “Watson” computer system to be a successful AI system since it was capable of producing highly accurate answers, to a surprisingly wide and difficult range of questions – the same answers that a strong, human Jeopardy champions would have produced. However, there is no suggestion that Watson’s results were the result of the same high-level cognitive understanding and processes that likely animated the result of the human champions like Ken Jennings. Rather, Watson’s accurate output came from techniques such as highly sophisticated statistical machine-learning algorithms that were able to quickly rank possible candidate answers through immense parallel processing of large amounts of existing written documents that happened to contain a great deal knowledge about the world.

Machine-Translation: Automated Translation as an Example

To understand this distinction between AI views rooted in computer-based cognition and those in “intelligent” or accurate results, it is helpful to examine the history of computer-based language translation (e.g. English to French). Translation (at least superficially) appears to be a task deeply connected to the human understanding of the meaning of language, and the conscious replication of that meaning in the target language. Early approaches to machine translation followed this cue, and sought to convey aspects to computer system – like the rules of grammar in both languages, and the pairing of words with the same meanings in both language – that might mimic the internal structures undergirding human cognition and translation. However, this meaning and rules-based approach to translation proved limited and surprised researchers by producing somewhat poor results based upon the rules of matching and syntactical construction. Such system had difficulty in determining whether the word “plant” in English should be translated to the equivalent of “houseplant” or “manufacturing plant” in French. Further efforts attempted to “teach” the computer rules about how to understand and make more accurate distinctions for ambiguously situated words but still did not produce marked improvements in translation quality.

Machine Learning Algorithms: Using Statistics to Produce Surprisingly Good Translations

However, over the last 10-15 years, a markedly different approach to computer translation occurred – made famous by Google and others. This approach was not primarily based upon top-down communication of the basics of constructing and conveying knowledge to a computer system (e.g. language pairing and rules of meaning). Rather, many of the successful translation techniques developed were largely statistical in nature, relying on machine-learning algorithms to scour large amounts of data and create a complex representation of correlations between languages. Google translate – and other similar statistical approaches – work in part by leveraging vast amounts of data that has previously been translated by humans. For example, the United Nations and the European Union frequently translate official documents into multiple languages using professional translators. This “corpus” of millions of paired and translated documents became publicly available electronically over the last 20 years to researchers. Systems such as Google Translate are able to process vast numbers of documents and leverage these paired, translated translation to create statistical models which are able to produce surprisingly accurate translation results using probabilities – for arbitrary new texts.

Machine-Learning Models: Producing “intelligent”, highly useful results 

The important point is that these statistical and probability-based machine-learning models (often combined with logical-knowledge based rules about the world) often produce high-quality and effective results (not quite up to the par of nuanced human translators at this point), without any assertion that the computers are engaging in profound understanding with the underlying “meaning” of the translated sentences or employing processes whose analytical abilities approach human-level cognition (e.g. view 1). (It is important to note that the machine-learning translation approach does not achieve translation on its own but “leverages: previous human cognition through the efforts of the original UN translators that made the paired translations.)  Thus, for certain, limited tasks,  these systems have shown that it is possible for contemporary autonomous agents to produce “intelligent” results without relying upon what we would consider processes approaching human-level cognition.

Distinguishing “intelligent results” and actions produced via cognitive intelligence

The reason to flag this distinction, is that such successful AI systems (as judged by their results), will pose a challenge to the task of importing and extending of existing legal doctrinal frameworks – (which were mostly designed to regulate people) into the domain of autonomous computer agents.  Existing “type 2″ systems that produce surprisingly sophisticated, useful, and accurate results without approaching human cognition are the basis of many products now emerging from earlier AI research and are becoming integrated (or are poised to become ) integrated into life.    These include IBM’s Watson, Apple’s SIRI, Google Search – and in perhaps the next decade or two – Stanford’s/Google’s Autonomous self-driving cars, and autonomous music composing software.  These systems often use statistics to leverage existing, implicit human knowledge.  Since these systems produce output or activities that in some cases appear to approach or exceed humans in particular tasks, and the results that are autonomously produced are often surprisingly sophisticated, and seemingly intelligent – such “results-oriented”, task specific (e.g. driving, answering questions, landing planes) systems seem to be the near path of much AI research.

However, the fact that these intelligent-seeming results do not result from systems approaching human-cognition is a nuance that should not be lost on policymakers (and judges) seeking to develop doctrine in the area of autonomous agents. Much – perhaps most of law – is designed and intended to regulate the behavior of humans (or organizations run by humans).  Thus embedded in many existing legal doctrines are underlying assumptions about cognition and intentionality that are implicit and are so basic that they are often not articulated.   The implicitness of such assumptions may make these assumptions easy to overlook.

Given current trends, many contemporary (and likely future) AI systems that will be integrated into society (and therefore more likely the subject of legal regulation) will use algorithmic techniques focused upon producing “useful results” (view 2), rather than focusing on systems aimed at replicating human-level cognition, self-reflection, and abstraction (view 1).  If lawmakers merely follow the verbiage (e.g. a system that has been labeled “artificially intelligent” did X or resulted in Y) and employ only a superficial understanding of AI research, without more closely understanding these technical nuances, there is the possibility of conflation in extending existing legal doctrines to circumstances based upon “intelligent seeming” autonomous results.   For example, the book authors explore the concept of requiring fiduciary duties on the part of autonomous systems in some circumstances. But it will take a careful judge or lawmaker to distinguish existing fiduciary/agency doctrines with embedded (and often unarticulated) assumptions of human-level intentionality among agents (e.g. self-dealing) from those that may be more functional in nature (e.g. duties to invest trust funds). In other words, an in-depth understanding of the technology underlying particular autonomous agents should not be viewed as a technical issue.   Rather it is a serious consideration which should be understood in some detail by lawmakers in any decisions to extend or create new legal doctrine from our existing framework to cover situations involving autonomous agents.

  February 16, 2012 at 10:41 pm  Tags: A Legal Theory for Autonomous Artificial Agents, Automated law, computer agents  Posted in: Cyberlaw, Google and Search Engines, Symposium (Autonomous Artificial Agents)   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

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

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

Stanford Law Review Online: Don’t Break the Internet

posted by Stanford Law Review

The Stanford Law Review Online has just published a piece by Mark Lemley, David S. Levine, and David G. Post on the PROTECT IP Act and the Stop Online Piracy Act. In Don’t Break the Internet, they argue that the two bills — intended to counter online copyright and trademark infringement — “share an underlying approach and an enforcement philosophy that pose grave constitutional problems and that could have potentially disastrous consequences for the stability and security of the Internet’s addressing system, for the principle of interconnectivity that has helped drive the Internet’s extraordinary growth, and for free expression.”

They write:

These bills, and the enforcement philosophy that underlies them, represent a dramatic retreat from this country’s tradition of leadership in supporting the free exchange of information and ideas on the Internet. At a time when many foreign governments have dramatically stepped up their efforts to censor Internet communications, these bills would incorporate into U.S. law a principle more closely associated with those repressive regimes: a right to insist on the removal of content from the global Internet, regardless of where it may have originated or be located, in service of the exigencies of domestic law.

Read the full article, Don’t Break the Internet by Mark Lemley, David S. Levine, and David G. Post, at the Stanford Law Review Online.

Note: Corrected typo in first paragraph.

  December 19, 2011 at 3:14 am  Tags: banks, credit card companies, DNS, DNS filtering, domain name seizures, domain name servers, domain names, financial institutions, Intellectual Property, Internet, internet security, internet stability, IP, IP addresses, IP rights, online advertisers, PROTECT IP Act, search engine censorship, search engines, SOPA, Stop Online Piracy Act, World Wide Web  Posted in: Current Events, Cyberlaw, First Amendment, Google & Search Engines, Google and Search Engines, Innovation, Intellectual Property, International & Comparative Law, Law Rev (Stanford), Law School (Law Reviews), Movies & Television, Property Law, Social Network Websites   Print This Post   One Comment

The Pluses of Google+

posted by Ari Waldman

I love shiny new toys. Sometimes, its a crisp new book (Pauline Maier, for one… thanks Gerard!); other times, it’s something plush and adorable, like the yellow Angry Birds doll my 5-year-old nephew “bought” for me last month. Last week, it was Google+.

Google+ is social networking done the Google way. The soft launch is part of Google’s long-running master plan to enter the social networking market and try to do it better than the basically moribund MySpace and the supposedly plateauing Facebook. We are told that Google+’s chief asset is its ability to simulate real relationships, and our different interactions with different types of friends, on the Internet.

Google+ introduces us to circles, where you can take the 800 or so “friends” you would have on Facebook and break them down on your own terms. You have friends, acquaintances, co-workers, well-wishers, frenemies, those-guys-you-met-at-that-terrible-bar, whatever. And, you can use these classifications to tailor your interactions, thus avoiding the problem of your mother, sister or child accessing a picture meant for your pals.

There are also sparks, which are news and video aggregators. It is easy enough to tell a spark what you enjoy doing when you’re not working on important affairs of state, thus allowing you to spend “more time wasting time without wasting your time looking how to waste time.”

And, hangouts are Google+’s attempts to recreate chance encounters. I’m not sure these are completely functioning yet, though. Remember when you used to visit the mall or walked through the West Village and ran into someone you hadn’t seen in years? Hangouts attempt to turn an online social networking into a place where anything social can happen, only with Google+, you “bump” into someone through a video message.

Let’s assume for the moment that all this works as well as we hope and that Google+ allows us to recreate real life in the virtual realm. Facebook is not really trying to recreate real life and simulate precisely how we interact with one another in the physical world. It is trying to supplement it, foster new interactions in new ways. At times, we don’t like that. Facebook’s forced socialization and privacy issues give many social networkers pause. There are many other digital technologies that seek to supplement our physical social world. Grindr, a geolocating social networking service for gay men, is one such example. Grindr allows its members to be out and about, smartphone in hand and find other gay men in the vicinity. Its purpose is to eschew traditional social networking that keeps you saddled to your computer and to let you physically meet people you have something in common with who may be living across the street or down the block. It is interactive, mobile and a multi-purpose tool.

So, Google+ is trying to forge a different path, i.e., using the Internet as an extension of our physical social circles and to keep those circles the way they are now. Of course, that is not to say that Google+ will not bring us closer to new friends — we can still interact with friends of friends, let people we barely know into our network and share content with whomever we please. But, Google+’s chief draw appears to be its greater fidelity to real life. If that is true in the long run, as Google works out the kinks and listens to its users, is that what we want in our online social networks?

The benefits are clear — we can avoid the grandmother seeing you at the bar problem. But there are also disadvantages — we lose the liberating potential of reaching new people. What do you think?

  July 20, 2011 at 10:46 am   Posted in: Culture, Google & Search Engines, Google and Search Engines, Social Network Websites   Print This Post   One Comment

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