Archive for the ‘Google & Search Engines’ Category

Academic Books, Non-Academic Books, BitTorrent, and Google’s Brand Power

posted by Deven Desai

D is for Digital is over now. I urge anyone interested in the Google Book Deal (aka the Google Book Search) to check out the schedule page and the webcast links (the stream links are at the top of the Friday and Saturday schedules respectively). James Grimmelmann put together a conference that aired out pro and con views rather well. In fact, I’d say although many were questioning the deal, I learned a good amount about the views of those in favor of the deal. I was not convinced that the deal is good and should go forward, but I appreciated hearing more about how the deal evolved and defenders’ views.

I highly recommend the keynote lunch with Pam Samuelson and Paul Courant. That panel warmed up the group. Some really good questions about transparency of the process, responsibility, and more came up. Pam’s key point that if one builds a pubic good this big, public trust responsibilities go with it was dead on for me. I highly recommend watching the video for all that was said.

The next panel C is for Culture was excellent. James asked a question that has been on my mind and we had kicked around at WIP IP last week. Is Google Book Search irrelevant?

Here is why that is good question. First, the day so far emphasized that the majority of the books in question are academic books. As Pam explained and Paul Duguid echoed, if scholars’ books are at stake, scholars should be involved. Paul made clear that scholarly standards should guide the project.

Now, consider that many books are becoming available on BitTorrent. In addition, one panelist, Dan Reetz has a fascinating project. His DIYscanner project is a wild moment in grassroots digital activism. The story of how he chose to build his low-cost, open source DIY scanner (we’re talking maybe $300-$400 total) so that one could scan personal (and other books) at the rate of a few seconds per page and without destroying the book merits another post. (for now here is a link to the plans to build your own scanner) In addition, Reetz noted that majority of new books are leaked prepublication. As a general matter, a key claim is that users will pay for a book but copy the book so that they can search and take many books with them. The importance of these changes is that crowd-sourced and other approaches to digitizing text is on the move. One can see this shift as indicating market failure or that ereader functionality will be more and more the case.

As scanners, ereaders, and companies like Stanza offer better ways to access, search, mark, and read, the walled or controlled version of the text experience that the Google Book Deal offers seems odd. I doubt, however, that it will be irrelevant. Google’s brand, the ease of searching (even with its errors so far), and the ability to trust Google over BitTorrent or other sources will likely make it relevant to many. Nonetheless, the growth in alternative sources would suggest that Google will need to choose between a web search that captures all useful book offerings or a Google Book Search that only gives Google Book results. As the last panel on antitrust explored, Google is already dominant in search. It arguably killed a little company called MapQuest. Once Google offered its maps and its maps became the default listing when one entered address information into the search, MapQuest was done. That seems awfully close to the MS bundling issues of the last decade. When it comes to books, Google’s lead and dominance will give it massive power and leverage over how we all access knowledge. Nonetheless, it may be that grassroots, crowd-sourced movements will permit an end around for the control the publishers want through this deal. To be clear an end-around is insufficient protection against the lock-in problems the Google Book Deal poses, but it may help push Google to reach a deal that is less run by publisher interests.

  October 12, 2009 at 7:40 am  Tags: Antitrust, DIY scanner, Goog, Google, Google Book Settlement  Posted in: Google & Search Engines, Intellectual Property, Technology, Web 2.0   Print This Post   One Comment

Google = ICANN?

posted by Deven Desai

One way to think about the Google Book Deal is that Google will end up as the super-gateway to books. It will in effect be the ICANN central authority of online books. So when Amazon and others have objected to Google’s claim that it will let everyone play in its sandbox, they are smart. No company should want to be a reseller (registrar in domain name terms). Insofar as one is competing with Google, who may also sell books, having to go through Google, the competitor, is undesirable to say the least. As the D is for Digital conference highlights, the way non-U.S. interests are not well-covered and represented is a problem. Insofar as the class action process is hijacking these international and domestic interests, the deal could be understood as an instance of arrogant law making with problems analogous to what one finds in Internet governance matters.

  October 9, 2009 at 6:51 am  Tags: Google, Google Book Settlement, ICANN  Posted in: Google & Search Engines, Intellectual Property   Print This Post   One Comment

Danger Will Robinson: Google Book Deal Is at DEFCON 2

posted by Deven Desai

The Google Book Deal is suspended. Time to cheer, correct? No. As Pam Samuelson noted in the New York Times, that probably is too little time to resolve the issues at hand. In fact I think right now is when the GBD is at quite a dangerous stage.

First neither party represents the public. One cannot expect them to represent the public, and one ought not trust they will do the right thing for the public. To be clear, I am not making a moral judgment here. I expect, as we all should, that each party will seek to maximize its position. Understanding why I refuse to call this situation a settlement helps understand this point. As many know, this action encompasses far more than the claims at issue in the suit. Many think that Google was on strong grounds for its fair use clam and its original use. The Publishers (aka the Registry seeming to be working for authors) saw the chance to get ahead of the digital curve. Unlike music and film, they realized they could look good and capture publishing’s future. They offered Google a deal that Google did not need. Or did it? Although Google is a data vacuum and does well with the ad-based business model, the search giant has been searching for a new revenue stream. Online ads can’t be the only source of revenue from any viewpoint. That is a precarious position. Indeed, the online ad market just took a big dip. The Deal presents Google with the chance to make money from something other than ads.

With this perspective one sees that expecting or trusting either party to look out for the public’s interest is foolish. My guess is that the public choice literature could yield some useful ways to think about the problem too, but I have not thought that through as yet.

Second, Google and the Publishers now have a wave of information from all quarters that they can use to their benefit. Here is the strategy that I expect to see. Assess the most severe and some of the less severe criticisms. Incorporate some of them in changes. Keep the deal as is for the most part (Note that is precisely what the Registry said will be the case “the core agreement is going to stay the same.”). Then when the time to approve, deny, or move the Deal to another form comes, one claims “We acted in good faith. We can’t keep everyone happy. Without this deal no one wins. Can’t we get along, move forward, and sort the details later? That is a more reasonable way to proceed.”

More importantly, those who have kept paying attention to the problem may start to lose focus or fade out. People may become tired or say is this thing still going on?

And that is why I say Danger Will Robinson. The Google Book Deal is at Defcon 2.

  October 8, 2009 at 2:59 pm  Tags: Google, Google Book Settlement, Registry  Posted in: Cyberlaw, Google & Search Engines, Intellectual Property, Media Law, Politics, Technology   Print This Post   No Comments

Tweeting for the Party

posted by Danielle Citron

During the 2008 election, Democrats effectively used Web 2.0 platforms to garner interest in the campaign and win supporters.  President Obama has been widely hailed as the first “Tech President,” and he seems to have trounced the Facebook landscape.  To date, President Barack Obama has over 6.6 million Facebook friends, while Sarah Palin only has 848, 614 Facebook pals and Mitt Romney has 70, 130.

Although the President has proven his mettle on Facebook and MySpace (where he has over 1.8 million friends), Republicans rule the day on the micro-blogging front.  The Congressional Research Service reports that congressional Republicans out-tweeted their Democratic counterparts during two one-week periods this summer.  Nancy Scola attributes Congressional Republicans’ Twitter dominance to their desire to regain the public’s attention and favor now that they are in the minority.  AMERICAblogs’ John Aravosis worries that Democrats have ceded their online advantage.

No matter the current political victor in this social media landscape, Government 2.0 is here to stay.  It surely has great potential to shine light on government policymaking and to marshal public participation, especially from people who otherwise wouldn’t bother getting involved with government policymaking.  Adding the President as a friend on MySpace and joining live chats may seem to be a relatively costless endeavor as compared to writing letters or commenting on agency rulemakings.  But Government 2.0 also poses privacy risks: social media sites not only give government access to people’s policy insights but also access to all of individuals’ social media data, such as their videos, photos, walls musings, “Top 25 things you don’t know about me” lists, and the like.  Soon, I will be posting on SSRN a draft of my essay “The One-Way Mirror: Enhancing Participation and Securing Privacy for Government 2.0″ (forthcoming George Washington Law Review) and hope to get your feedback.

  September 28, 2009 at 12:11 pm   Posted in: Cyberlaw, Google & Search Engines, Privacy, Privacy (Consumer Privacy), Privacy (Electronic Surveillance), Privacy (Law Enforcement), Privacy (National Security), Social Network Websites, Technology, Uncategorized   Print This Post   No Comments

Austin Police Department Wrestles with Anonymous Critics: Remembering New York Times v. Sullivan

posted by Danielle Citron

Austin Police Chief Art Acevedo, like Howard Beale in Network, is “mad as hell and is not going to take it anymore.”  Why?  Anonymous online commentators have accused him and other officers of engaging in sexual impropriety and other quid pro quo behavior. According to the Austin American-Statesman, a poster masqueraded as a police commander in making some of the comments.  The department suspects that some of the posters could be department employees.  Acevedo asserted that because such posts erode public trust in the department and wrongly malign it, the department is considering seeking “search warrants or subpoenas from judges to learn the identities of the authors.”  The Texas legislature recently criminalized impersonating another on social network sites without their permission and with the intent to harm, defraud, intimidate, or threaten.

The Police Chief’s discussion moves us into New York Times v. Sullivan territory: the right to criticize government and the conduct of public officials.  Sullivan provides immunity for speech related to the business of governing for all but knowing or reckless falsehoods.  It also teaches us that the freedom to criticize government is “the central meaning of the First Amendment.”  Justice Brennan’s opinion explained that the idea of seditious libel is inconsistent with the First Amendment, echoing Alexander Meklejohn’s notion that the Constitution made the people their own governors.  It underscored that because “erroneous statements” are “inevitable in free debate,” it must be protected if the freedom of expression is to have the “breathing space” it “needs to survive.”

Eroding the public’s trust in the police department, if deserved, is precisely what New York Times v. Sullivan would say citizen-critics of government must do to govern themselves.  We can make meaningful choices about public officials only if whistle blowers and others reveal their “quid pro quo” behavior and other forms of sexual impropriety on the job.  Yet, as the Sullivan Court held, deliberate falsehoods about public officials can be “used as a tool for political ends” and can interfere with the “orderly manner in which economic, social, or political change is to be effected.”  Hence, for the Court, calculated falsehoods “are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.”  Further complicating matters is the question of how much government can limit its employees’ speech, something that First Amendment scholar Helen Norton has tackled thoughtfully in this Duke Law Journal piece.  Interestingly, civil libertarian groups applauded the hiring of Police Chief Art Acevedo in 2007.  I wonder what the Austin ACLU thinks now.

H/T Slashdot for the story

  September 21, 2009 at 9:46 am  Tags: free speech  Posted in: First Amendment, Google & Search Engines, Technology, Tort Law, Uncategorized   Print This Post   No Comments

Copyright Irony, Of Royalty Boards and Google Book Deals

posted by Deven Desai

Earlier this week Live365 filed a law suit arguing that the Copyright Royalty Board is unconstitutional. Today is the deadline for authors to opt-out of the class in the Google Book Settlement. The idea that this Settlement ought to approved is more than suspect. Others have noted the myriad issues the settlement raises. As Pam Samuelson has put it “Exploiting an opportunity made possible by lawsuits brought by a small number of plaintiffs on one narrow issue, Google has negotiated a settlement agreement designed to give it a compulsory license to all books in copyright throughout the world forever. This settlement will transform the future of the book industry and of public access to the cultural heritage of mankind embodied in books. How audacious is that?” The nature of the class, whether class action (which I usually see as better suited to resolving tort rather than property claims) is the correct approach, the way in which this class purports to operate, and the anti-trust issues alone should make it clear that this deal, although possibly offering benefits, should be slowed down and put under further scrutiny.

It is ironic that one one hand Live365 has been able to raise a Constitutional challenge to a copyright royalty issue, and on the other hand what is surely a turning point in copyright history and the question of how society governs access-to-knowledge is subject to a private deal between private parties who have little concern for society’s claim to access and use the works in question. To be clear, I am not arguing that it is improper to figure out a possible payment system. Samuelson’s work on mapping the public domain is clear about reasons we may need and want to have certain groups build, maintain, and charge money for information repositories. The questions that concern me are what will that system look like? Will it allow innovation and competition in the provision of the similar services or will it hinder such efforts? Is this service a natural monopoly? Will the incumbents after the deal is done be able to extract rent? What about the different uses that are conflated here (e.g., higher educational uses, research uses, social networking uses, and more)? What about the spillovers that could come from a more open system such as empirical research on the data in the works and computer science work on the way language operates?

I have begun a close read of the 140 page contract and its appendices. I urge all of you to take a look at the contract. It reminds a little too much of entertainment deals I have read in practice. Some clauses are opaque; some bizarre. All protect one party and ignore others. In a Hollywood or other publishing arena that may be O.K. When talking about the modern Library of Alexandria, it is not.

To whet your appetite about why one should not accept the deal at face value look at this statement of objectives:

The economic terms for Institutional Subscriptions of Books will be governed by two objectives: (1) the realization of revenue at market rates for each Book and license on behalf of Rightsholders and (2) the realization of broad access to the Books by the public, including institutions of higher education. Plaintiffs and Google view these two objectives as compatible, and agree that these objectives will help assure both long-term revenue to the Rightsholders and accessibility of the Books to the public.

My initial comments are at the Public Index in Section IV. But in brief, the assumption that the objective of market rates and the realization of broad public access are compatible is on the surface semi-plausible but facile. The following sub-clauses make it clear that broad public access is not the animating force on the deal. Intense control over access and the ability to price discriminate (including a ban on k-12 access unless the Registry (publishers) agree) are the goals. Again if others read the sections and can show where I err, I am all ears.

As a general matter, if anyone can share why class action was wise and/or a good fit here, please share your insights.

Last, I suggest that this deal is so important that Congress has to be involved. As private re-writing of the Copyright Act is not the correct way to proceed. It will likely take away the chance for copyright to roar into the twenty-first century with a winning solution for authors, publishers, and society at large and instead will repeat history with the system being captured and benefiting only a narrow class of stakeholders.

  September 4, 2009 at 11:33 am  Tags: class action, copyright, Google Book Settlement  Posted in: Constitutional Law, Google & Search Engines, Intellectual Property, Technology, Web 2.0   Print This Post   2 Comments

Cyber Civil Rights vs Privacy in the “Skanks in NYC” case

posted by Kaimipono D. Wenger

As Dan rightly notes, the recent court order unmasking the anonymous author of the “Skanks in NYC” blog raises serious privacy concerns. He elaborates on those concerns in his post, arguing that the court used too low of a standard, that the lawsuit may have been frivolous, and that anonymity needs greater protection. Dan links to CyberSLAPP, an EFF project which combats abusive lawsuits that seek to unmask anonymous critics of corporations or public figures.

CyberSLAPP’s site contains a spirited defense of a right of anonymous criticism which reads, in part:

Why is anonymous speech important?

There are a wide variety of reasons why people choose to speak anonymously. Many use anonymity to make criticisms that are difficult to state openly to their boss, for example, or the principal of their children’s school. The Internet has become a place where persons who might otherwise be stigmatized or embarrassed can gather and share information and support victims of violence, cancer patients, AIDS sufferers, child abuse and spousal abuse survivors, for example. They use newsgroups, Web sites, chat rooms, message boards, and other services to share sensitive and personal information anonymously without fear of embarassment or harm. Some police departments run phone services that allow anonymous reporting of crimes; it is only a matter of time before such services are available on the Internet. Anonymity also allows “whistleblowers” reporting on government or company abuses to bring important safety issues to light without fear of stigma or retaliation. And human rights workers and citizens of repressive regimes around the world who want to share information or just tell their stories frequently depend on staying anonymous sometimes for their very lives.

Is anonymous speech a right?

Yes. Anonymous speech is presumptively protected by the First Amendment to the Constitution. Anonymous pamphleteering played an important role for the Founding Fathers, including James Madison, Alexander Hamilton, and John Jay, whose Federalist Papers were first published anonymously. And the Supreme Court has consistently backed up that tradition, ruling, for example, that an Ohio law requiring authors to put their names on campaign literature was a violation of the First Amendment. Indeed, the Supreme Court has ruled that protecting anonymous speech has the same purpose as the First Amendment itself: to “protect unpopular individuals from retaliation and their ideas from suppression.”

Of course, any sensible person would be opposed to silencing today’s James Madisons or Alexander Hamiltons. Is this really the correct analogy here, though? Is Skanks in NYC like the Federalist Papers? Read the rest of this post »

  August 25, 2009 at 11:40 am  Tags: Cyber Civil Rights, Privacy  Posted in: Blogging, Google & Search Engines, Privacy   Print This Post   3 Comments

Google, Glenn Beck, and AP: Are Results Being Squashed?

posted by Deven Desai

So some of you may have heard that Glenn Beck has managed to upset advertisers by calling President Obama a racist. I don’t have much to say about Beck. I was more interested in the advertiser reaction. I saw the article on Yahoo! but wanted a more stable URL. So I copied the AP news story title and pasted into the Google. Here are the results.

Notice how the results indicate that there are “365 related articles”? Usually I click that and indeed see a rack of articles. Today, however, this is what happened when I clicked on the link promising a cornucopia of news stories:

Just one result! And it is only to AP page hosted by Google! (not sure whether Google is hosting all or most AP content, but it looks fishy). Maybe everyone was just running the AP story, but maybe those other outlets would have had more information of interest. Could it be that AP and Google are somehow in bed with each other on these results. (For all I know that is the case, and I missed that memo as I have been getting an article out the door and cleaning up a book chapter). Is this all part of AP’s claims regarding the ability to control its copy?

In short, watch the Google. It is creepy at times.

UPDATE: A quick commenter noted that the right side has a link that shows all the results “Sort by date with duplicates included.” THANKS!

I did not see that. Still I seem to recall that the related articles page used to have many of the redundant results. So the new approach could be helpful and efficient, but I wonder whether this new streamlined version of results applies to all news or just AP.

Furthermore, I throw open the idea that people may prefer the redundancies at the outset. That way they can go (as I did when I was on the web results page) to a source such as ABC or some other source one may trust or that one hoped would provide more than the AP coverage (be it vitriol over the boycott or praise for it).

  August 24, 2009 at 2:57 pm  Tags: AP, Glenn Beck, Google  Posted in: Google & Search Engines, Intellectual Property   Print This Post   3 Comments

Google Books and the Limits of Courts

posted by Frank Pasquale

The Google Books litigation has inspired a lot of commentary on the web. As an early October fairness hearing approaches, a consensus appears to be building: the proposed settlement is too important and complex for a court to approve in its current form. Agent Lynn Chu has complained that “No one elected the[] ‘class representatives’ to represent America’s tens of thousands of authors and publishers to convey their digital rights to Google.” Pamela Samuelson, by all accounts one of the leading academics in American intellectual property law, has this to say:

The Google Book Search settlement will be, if approved, the most significant book industry development in the modern era [emphasis added]. . . . The Authors Guild has about 8000 members. OCLC has estimated that there are 22 million authors of books published in the U.S. since 1923 (the year before which books can be presumed to be in the public domain). Jan Constantine, a lawyer for the Authors Guild, is optimistic that authors and publishers of out-of-print books will sign up with the Registry, but there are many reasons to question this.

For one thing, the proposed settlement agreement implicitly estimates that only about 750,000 copyright owners will sign up with the Registry, at least in the near term. Second, many books are “orphans,” that is, books whose rights holders cannot be located by a reasonably diligent search. Third, many easily findable rights holders, particularly academic authors, would much rather make their works available on an open access basis than to sign up with the Registry. Fourth, signing up with the Registry will not be a simple matter, since the Registry won’t just take your word for it that you are the rights holder. You are going to have to prove your ownership claim.

The non-representativeness of the class is one ground on which it is possible to object to the proposed Book Search settlement. Other reasons to object or express concerns will be explored in subsequent articles. Objections must be filed with the court by September 4, 2009.

A suitable platform for hosting public discussions of the deal only launched a few weeks ago, thanks to the diligent efforts of James Grimmelmann (who is also organizing an academic conference on the issue in October). The proposed settlement raises a number of issues, which may only be addressed by extensive regulation of the project — or a public alternative dedicated to serving those marginalized by the current proposal.
Read the rest of this post »

  August 11, 2009 at 9:39 am   Posted in: Antitrust, Economic Analysis of Law, Google & Search Engines, Intellectual Property, Law and Inequality, Privacy, Uncategorized   Print This Post   One Comment

Could Yahoo! + Bing = Death to Google?

posted by Deven Desai

Yahoo! continues to be in the news as company that has lost its way. After failed merger problems, Yahoo has now sold its search business to the formerly evil and now oddly white knight(ish) Microsoft. It seems that Yahoo! and MS are now in a deal where MS’s Bing will power (and have some brand palcement) Yahoo!’s search. Others can go into the drop from about $46 billion to $4 or 5 billion sale price and other Yahoo! acts that make one wonder what the company is doing. For now, I want to remind folks about a little relationship called Yahoo! search powered by, wait for it, Google. Yes, Google. I wonder whether the G would be where it is today if Yahoo! had not given it that key placement. As one article pointed out

In a unique twist, Yahoo didn’t simply renew the deal for Google to be its “backup” partner, used only when Yahoo itself doesn’t have an answer. Instead, the company has embraced Google’s results even more tightly. Unveiled to the general public today is a new Yahoo search results page, where there is no longer a separation between Yahoo’s own human-powered listings and Google’s crawler-based results. Instead, the two are blended together.

Read the whole article for some fascinating perspectives on Yahoo! versus Google when Y was the big player. To be fair, Yahoo! appears to have had small chances to buy Google (but one might also say that after being apparently turned down for help by Yahoo!, the Google folks knew that they should not sell even at $3 billion). I for one don’t think I can say that Yahoo! should have known that Google was going to pop its IPO the way it did. For that matter had then CEO Terry Semmel bought Google, he would have had to take it public to show that it was worth the money. As Wired notes “Google’s revenue stood at a measly $240 million a year. Yahoo’s was about $837 million. And yet, with Yahoo’s stock price still hovering at a bubble-busted $7 a share, a $5 billion purchase price would essentially mean that Yahoo would have to spend its entire market value to swing the deal. It would be a merger of equals, not a purchase.”

So now we have the Yahoo! MS deal. It could be that Yahoo! is again running up the white flag about its ability to be a real technology/engineering company (”But now we have empirical evidence: At Yahoo, the marketers rule, and at Google the engineers rule. And for that, Yahoo is finally paying the price.”). But it may also be a way that MS will be able to grab Yahoo!’s customers, compete on search, and show that it still has the chops to beat back Google’s relentless drive to be all things to everyone. If so, maybe the two companies will balance each other out for a bit. Either way, it seems that as the NY Times pointed out, Yahoo! has exited the search game because as its CEO admits it cannot play in it at the level that MS and Google can (billions of dollars). Whether Yahoo! can find a new way to be relevant is another issue. The Times article describes Yahoo!’s severe dysfunction and what to me reads like classic Internet company arrogance. That being said, maybe Yahoo! is picking its best fight and with a little MS mixed in, Google will have to stay honest too. Or maybe this move is Yahoo!’s way of taking on Google while Yahoo! heads out of our world.

  August 10, 2009 at 3:31 pm  Tags: Google, Microsoft, search engines, yahoo  Posted in: Google & Search Engines, Intellectual Property, Social Network Websites, Technology   Print This Post   6 Comments

The Convergence of the Public and Private in Online Spaces

posted by Danielle Citron

Last month, Government Technology had an article entitled “Blurring the Line,” which discussed the increasingly public nature of online social networking sites.  Employers now “friend” employees, leaving the employed likely to accept those friendships out of fear for losing their jobs.  The article discusses the problems attendant to the convergence of of our work, social, and family worlds and asks whether this phenomenon will alter the nature of those spaces from a sharing free-for-all to a more buttoned-down, “not afraid for the boss to see” experience.

In reading the article, I wondered if the story will play out in a different way, one that will meet employers’ desire to harness the connectivity of social networking sites without compromising its current incarnation.  As we have seen in the government sector with internal wikis like Intellipedia, we may see employers increasingly adopt in-house social networking sites, say a [Name] Company Connect.org, just as we have seen employers wade into the Twitter space.  We may already be doing this (and it would be really interesting to learn about it), but perhaps such sites would nip in the bud employers/managers/supervisors’ desire to friend their underlings.  This may detract from the goal of monitoring employees, but we surely have enough of that in the workplace already (as well as the ability to view employees’ profiles for the very many people who fail to set rigorous privacy settings, as ACM studies show).  And it may save employers from having looked at employees’ damning wall musings and pictures and figuring out just what to do about it.

  August 5, 2009 at 7:02 am   Posted in: Cyberlaw, Google & Search Engines, Privacy, Privacy (Consumer Privacy), Technology, Uncategorized   Print This Post   2 Comments

Surveillance Facebook-Style: It’s Your Party and You Can Cry If You Want To

posted by Danielle Citron

The U.K.’s Register reports that British police stormed a man’s birthday barbeque party because his invite to 15 Facebook friends advertised an “all night party.”  Before the party could really begin, police showed up in four cars, a riot van, and a helicopter, ordering the birthday boy to shut the party down or face arrest.  With an appropriate amount of humor, Andrew Poole, the birthday trouble-maker, explained: “What the police did was come in and stop 15 people eating hamburgers.”  What would possess the Facebook Precinct to bother here?  Section 63 of the Criminal Justice and Public Order Act 1994 grants police powers to remove individuals attending or preparing for a “rave,” defined as playing amplified music “wholly or predominantly characterised by the emission of a succession of repetitive beats.”

This incident demonstrates the perils of a society that monitors and mines Facebook communications.  The costs to liberty include blows to free expression and association.  Brits will surely think twice about wall messages and “what I am doing now” missives that include talk of parties and other activities subject to misinterpretation.  The costs to society: the misdirection of police from real threats to society and wasted resources spent breaking up a birthday bash (the helicopter time apparently cost 200 pounds and tack on the police efforts, including any investigation they conducted and time at the party, and gas for the four cars and van).  So with Facebook surveillance the British may get less liberty and less security.

Commentators on the Register story noted their relief at living in the United States.  They suggested that law enforcement and security officials would never be so foolish as to monitor Facebook traffic.  Think again.  The NSA’s Advanced Research Development Activity (ARDA) has funded research on the “Semantic Analytics on Social Networks: Experiences in Addressing the Problem of Conflict of Interest Detection,” which discusses how  intelligence about people can be extracted from social networks.  ARDA’s role is to spend NSA money on research that can “solve some of the most critical problems facing the U.S. intelligence community.”  ARDA’s function is to make sense of the massive amount of data that the NSA collects.

Should Americans be worried about intelligence profiling a la Facebook?  Many might think that the use of privacy settings on social networking sites would obviate the problem.  First, studies suggest that most social networking site users use the default privacy settings, which are often the least privacy protecting and may reveal much of a user’s musings.  Second, this assumption presumes that third party sites will not turn over social networking data, which they own, to the government, either for a pretty price or in the face of a subpoena or warrant.  This assumption may be faulty.  So what is all of the fuss?  Automated intelligence profiling has obvious costs, such as the ones posed by the birthday party bust.  It also has less apparent ones, such as mining misleading social networking data with other not-so reliable private and public database date and, poof, people end up on government watchlists.

Stock Xchange Photo

  July 19, 2009 at 4:01 am   Posted in: Anonymity, Architecture, Cyberlaw, Google & Search Engines, Privacy, Privacy (Electronic Surveillance), Privacy (Law Enforcement), Privacy (National Security), Technology, Uncategorized   Print This Post   2 Comments

Google Book Search Scrutiny

posted by Frank Pasquale

Writing in Slate, Mark Gimein knocks down a number of straw man arguments against the Google Book search deal. I look forward to seeing how he grapples with more serious concerns, like those raised by James Grimmelmann. I’ve also been impressed by Christopher Suarez’s working paper on the need for antitrust scrutiny of the proposed deal . Suarez proposes a number of sensible settlement modifications that I hope the court will take seriously. It doesn’t have much time to get this right, as the following conference announcement shows:
Read the rest of this post »

  July 1, 2009 at 4:29 pm   Posted in: Antitrust, Economic Analysis of Law, Google & Search Engines, Intellectual Property   Print This Post   No Comments

New Developments in Cryptography and Privacy

posted by Deven Desai

According to Help Net Security, Craig Gentry, a researcher at IBM, appears to have found a way to allow “the deep and unlimited analysis of encrypted information – data that has been intentionally scrambled – without sacrificing confidentiality.” The solution involves a an “ideal lattice.” I’ll leave the explanation of all the math to the math/computer science folks. As the Help Net article notes, the solution seems to enable some great advantages for anyone providing cloud computing for:

computer vendors storing the confidential, electronic data of others will be able to fully analyze data on their clients’ behalf without expensive interaction with the client, and without seeing any of the private data. With Gentry’s technique, the analysis of encrypted information can yield the same detailed results as if the original data was fully visible to all.

It all sounds wonderful. One could have encrypted data and let others data mine while maintaining anonymity or privacy. Yet, something seemed odd to me. So I did what lawyers do, I called someone who knew more about computer science and asked for some help. That person explained that yes this could mean one could query an encrypted database without decrypting the data. The example to consider is a database of book purchases. One could ask how many people bought both book A and book B and see that result without ever seeing what a specific person purchased. Great, right? Not so fast.

As this person reminded me, with other sources of information one can figure out what a specific person did. That reminded me of the AOL debacle. With a little work, people were able to figure out who the anonymous subjects were.

All of which highlights that privacy is not binary. The cluster of information and the ability to analyze it seems often, if not always, to lead to problems about the use of information. So if this breakthrough allows a company or the government to claim that we should remain calm and all is well, we may want to remain clam but show how all may not be well. A few regulations about the use of the data even if supposedly anonymous, might allow the beneficial aspects of the solution to thrive while limiting the harms that can occur.

Image: WikiCommons
By: Gwenda; License: Public Domain
(My apologies to CS folks if the image does not match the breakthrough’s area of encryption)

  June 30, 2009 at 11:35 am  Tags: cloud computing, cryptography, Privacy  Posted in: Cyberlaw, Google & Search Engines, Privacy, Privacy (Consumer Privacy), Privacy (Electronic Surveillance), Privacy (Law Enforcement), Technology   Print This Post   7 Comments

Toward a Public Alternative in Digital Archiving and Search

posted by Frank Pasquale

With inimitable clarity, Cory Doctorow made the case for an open alternative to Google in The Guardian earlier this month. He focused on the secrecy of search:

[S]earch engines routinely disappear websites for violating unpublished, invisible rules. Many of these sites are spammers, link-farmers, malware sneezers and other gamers of the system. . . . The stakes for search-engine placement are so high that it’s inevitable that some people will try anything to get the right placement for their products, services, ideas and agendas. Hence the search engine’s prerogative of enforcing the death penalty on sites that undermine the quality of search.

[Nevertheless, i]t’s a terrible idea to vest this much power with one company, even one as fun, user-centered and technologically excellent as Google. It’s too much power for a handful of companies to wield.

Search engines like Google have some good reasons for keeping their algorithms confidential–if they were public, manipulators could quickly swamp Google users with irrelevant results. However, just as Comcast cannot circumvent net neutrality regulation by saying all its traffic management and spam-fighting methods are trade secrets, search engines should not be able to use such arguments to escape regulation altogether. Moreover, there are ways of developing a qualified transparency that would let a trusted third party examine a search engine’s conduct without exposing its business methods for all the world to see.

But Doctorow does not want regulation here–he wants an alternative. Having made a similar case for a “public option” in the case of health insurance, I like this line of argument, but I think Doctorow is underestimating the barriers to entry. Though he’s aware of the failure of Wikia, Doctorow wonders if a “wikipedia for search” could be built:

We can imagine a public, open process to write search engine ranking systems, crawlers and the other minutiae. But can an ad-hoc group of net-heads marshall the server resources to store copies of the entire Internet? . . . . It would require vast resources. But it would have one gigantic advantage over the proprietary search engines: rather than relying on weak “security through obscurity” to fight spammers, creeps and parasites, such a system could exploit the powerful principles of peer review that are the gold standard in all other areas of information security.

The “rival public system” approach has been suggested for search engines a few times before. About a decade ago, Introna & Nissenbaum demonstrated that “the conditions needed for a marketplace to function in a ‘democratic’ and efficient way are simply not met in the case of search engines.” Recognizing this, Jean-Noel Jeanneny made a case for a French language alternative to dominant US-based search engines. The Quaero project in the EU appears to be answering that call, though in a far more dirigiste manner than Doctorow would probably like.

I have a few thoughts on a “public option” in search, building on a talk I gave at Yale Law’s Library 2.0 conference in the spring.
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  June 20, 2009 at 7:59 pm   Posted in: Antitrust, Google & Search Engines, Privacy   Print This Post   5 Comments

The Privacy Implications of “Friending” the White House (Part II)

posted by Danielle Citron

Since I last wrote about President Obama’s Facebook friends, Government 2.0 has  steadily progressed.  Since early May, our Commander-in-Chief has added more than 150,000 new friends.  The FDA has initiated its Transparency Blog and will soon add a Twitter feed and Facebook page.  More state agriculture agencies reach the public through social networking sites.  Of course, the government social-networking phenomenon is not brand new:  since 2007, the Commerce Department’s National Oceanic and Atmospheric Administration has maintained a virtual island in Second Life  and the CDC has had a MySpace page.   Nonetheless, it is a particularly auspicious time to think about this trend’s privacy implications especially in light of the GSA’s recent agreement with video-sharing and social networking sites to permit agencies to use their services.

What are the public’s privacy expectations when using government social media?  It is surely too early to identify a clear sense of our expectations, at least in any well-studied way.  But the Obama Administration has provided some sense of what we should expect when we join a future Facebook group sponsored by OMB or engage in virtual conversations with agency officials in Second Life.  How so?  The current push for agencies to use Web 2.0 platforms stems from President Obama’s January 21, 2009 Open Government memorandum.  The memorandum urges executive departments and agencies to be more transparent, participatory, and collaborative.  Agencies “should harness new technologies to put information about their operations and decisions online and readily available to the public.”  They should “offer Americans increased opportunities to participate in policymaking and to provide their Government with the benefits of their collective expertise and information.”  And they should use “innovative tools, methods, and systems to cooperate” and collaborate with the public and private sectors in making policy.  USA.gov’s Sheila Campbell has explained that agencies will appoint directors of new media to determine how they can use social networking tools to meet mission goals and comply with President Obama’s Open Government directive.  As White House CIO Vivek Kundra has noted, public comment on programs will hopefully be a “two-way interaction between government and its citizens.”  White House spokesperson Moira Mack clarified the point:  “we are focused on opening government to the people (and not the other way around), and like with any other online friends, the individual users can still choose to keep information private using their privacy settings.”

So what does all of this signal about our privacy when interacting with government agencies via Facebook, MySpace, Twitter, You Tube, etc.?  The Open Government directive tells us that government wants to shine light on its activities and get our opinions and expertise on policy matters.  It says nothing about government’s interest in our personal lives, i.e., what we write on our friends’ walls, the 25 things you don’t know about us, our network of friends, etc.  Our personal lives seem downright out of place in any discussion of the Open Government directive.  This seems to create a presumption of openness as to policy-related matters and a presumption of privacy as to individuals’ personal matters.

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  June 18, 2009 at 10:41 am   Posted in: Administrative Law, Google & Search Engines, Privacy, Privacy (Consumer Privacy), Technology, Uncategorized   Print This Post   7 Comments

The Many Deaths of Privacy

posted by Frank Pasquale

As they follow the fascinating and heartening “Twitter Revolution” in Tehran, commentators worry that “the regime is prepared to detain dissidents — reportedly using Facebook and Twitter to locate them.” Yesterday also saw new reports of controversy over domestic surveillance by the US National Security Agency. Apparently the “agency routinely examined large volumes of Americans’ e-mail messages without court warrants.” Commentators like Glenn Greenwald and our own Dan Solove have done a great job explaining the legal details of NSA surveillance. I just want to comment on some of broader social trends that explain the upward ratchet of surveillance around the world.

Worries about the “death of privacy” have been prevalent for some time. We increasingly lack control over (or even awareness of) the digital profiles kept about us by businesses and governments. Another form of privacy—that at the core of the public-private divide—has also been in decline over the past couple decades. As the essays in Freeman and Minow’s book Government by Contract show, “privatization” is often less an arm’s length transaction between government and business than a veritable marriage of institutions. The recent explosion of public-private partnerships in the finance and auto industries further erodes the distinction between government and business. As William J. Novak’s essay in Government by Contract observes, much of what we think of as purely private markets are creatures of state action:
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  June 18, 2009 at 8:00 am   Posted in: Google & Search Engines, Privacy, Privacy (Electronic Surveillance), Privacy (Law Enforcement), Privacy (National Security), Social Network Websites   Print This Post   No Comments

Maps and Legends

posted by Deven Desai

Space the final frontier. These are the voyages of … ah, you know the rest. Exploration and the idea of frontiers seem to capture an important part of the human experience. The possibility of finding something new, of entering uncharted territories excites people. And, although one may want to keep the secret of the Northwest Passage or the Straits of Magellan a secret, sooner or later a map is created to increase the amount of benefit that can be extracted from the discovery. Yet with the world seeming to collapse into one connected place, the role of maps has changed. In short, maps are a new frontier for property and privacy.

As Jacqueline Lipton noted Google Maps has enabled the persistence of race discrimination. Google Maps has also spawned some other curious creations and connections. For example, I wrote about the flap over what is a true IMAX screen and that folks put together a map of IMAX screens with information about the screen size. The H1N1 (aka swine) flu epidemic revealed an interesting dual use for maps. One person created a frequently updated map with information about claimed incidents. I was curious about the source and found that one person at, what else, a bitotech company focused on recombination and disease, was behind the map. In addition, a group called Health Map seeks to offers a map that connects “disparate data sources to achieve a unified and comprehensive view of the current global state of infectious diseases and their effect on human and animal health.” On the light side, Total Film has a feature that uses Google Street view to show 25 favorite film locations.

As seems always to be the case, folks will probably soon argue about who owns what. The more interesting point might be the way maps show the malleability of information. In some hands, maps show fun things like where a film was shot. In other hands, maps provide useful epidemiological information. Yet, certain home owners may not be pleased about having tourists show up to gawk at what had been a quiet abode. Cities, counties, and even states may be upset if lay people assume that suspected or even confirmed outbreaks mean they should create a de facto or quasi-quarantine. Last, knowing where specific racial, religious, and other groups are can all too easily lead to mob behaviors.

The information mill churns. We have to sort it out. Old tools have new impacts. Today maps pose challenges. Tomorrow it will be something else. I am never certain that the law is the best way to manage these changes. Nonetheless, we have to consider what they are and how they function in case the law is asked to do so. On that note, please share any other creative and/or challenging uses of maps of which you are aware.

Last here is a little music for the trip:

Maps And Legends – R.E.M.

  May 29, 2009 at 3:42 pm  Tags: copyright, Google maps, H1N1, IMAX, maps, Privacy, property  Posted in: Google & Search Engines, Health Law, Intellectual Property, Privacy, Privacy (Medical), Property Law   Print This Post   2 Comments

Google Earth and Caste Discrimination in Japan

posted by Jacqueline Lipton

With gratitude to Funmi Arewa for sending me this link, here’s an interesting story from the Times Online about an unexpected area in which Google has found itself in hot water.  In adding information to some modern day maps of Japan on Google Earth, Google engineers overlaid some old maps of Japan on the modern sattelite images.  This effectively shows how some of the old Japanese ghettos relate to modern 21st centry streets.  Unfortunately, it also provides a proxy that effectively allows prospective employers to guess on the ancestry of people who may be applying for jobs and to identify them as likely members of a caste considered as “untouchables” and condemned to the worst positions in the social and cultural hierarchy.  Google did not realize how offensive and problematic this data-driven action could be within Japan.  It’s a great example of how modern technology can clash with deeply ingrained cultural mores.

On another note, this is my last post for Concurring Opinions as I’m heading off tomorrow for my first long weekend vacation in (too) many years!  Thanks so much to Dan and the whole Concurring Opinions crowd for having me.  I hope to visit again sometime.  Happy summer vacation everyone…

  May 27, 2009 at 8:09 am  Tags: caste, discrimination, Google, Japan, maps  Posted in: Cyberlaw, Google & Search Engines, Race, Technology, Web 2.0   Print This Post   2 Comments

Search Engine Trivia

posted by Jacqueline Lipton

Again, I’m writing about trivia while there are important things going on in the world (eg Supreme Court nominations as Gerard previously noted).  However, while reading “Google Speaks“, I’ve picked up some search engine trivia that people might like to test their knowledge on.  How many of the following questions can you answer?

1.  Where did Google’s “PageRank” algorithm get its name?

2. Where did Google get its name from?

3. Where did Yahoo get its name from?

[answers below the fold]

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  May 26, 2009 at 6:57 am  Tags: Google, search engine, yahoo  Posted in: Culture, Cyberlaw, Google & Search Engines, Technology, Uncategorized   Print This Post   No Comments

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