I highly recommend the keynote lunch with Pam Samuelson and Paul Courant. That panel warmed [...]]]> 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.

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 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.

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 [...]]]> 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.

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 [...]]]> 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?

Because, of course, the flip side of anonymity is that it can open the door to uniquely problematic personal attacks. This problem is set out in Danielle’s article Cyber Civil Rights, where she examines cases where anonymity was used as a shield to allow malicious online mobs to harass innocent victims, who tend to be disproportionately female. (And of course, the privacy sword cuts both ways here as well — it is a rather egregious invasion of privacy for a normal person to have their private life attacked on a blog.)

The Skanks in NYC blog has been taken down, but the news reports make clear that the site was not dedicated to political discourse, human rights advocacy, or whistleblowing about problematic corporate actions. Rather, it was a series of personal attacks on the model Liskula Cohen, calling her a whore, a ho, an old hag, the “skankiest in NYC” and a “psychotic, lying, whoring … skank.” Cohen — who coincidentally was recently the victim of a freak, career-ending real-life attack by a stranger — was targeted in personal, particularly gendered ways by the Skanks in NYC site. (After all, there is no male analogue to words like slut, skank, or whore.)

These attacks affected her personally, and had negative effects on her career as well, as reported in various news accounts.

Cohen, who described herself as a “serial monogamist” and has a “zero tolerance drug policy,” said the words were defamatory and harmful to her career. Prospective clients would question her about the blog and what she was doing in the photos, she says.

“Finding new clients this year has not been a walk in the park,” she said. “I’ve worked very long in this industry.”

Frankly, Skanks in NYC doesn’t look like a set of Publius-esque words that deserves protection for anonymity. It does not match any of CyberSLAPP’s examples of helpful anonymity. Instead, it looks exactly like the many cases of anonymous and gendered personal attacks, like Autoadmit and Kathy Sierra attacks, which Danielle rightly labels destructive: Online attacks, often sexually framed, which targeted the personal well-being and careers of their disproportionately female victims.

I understand that the concern here is for the precedent. Google turned over the anonymous blogger’s identity in this case; who’s to say that they won’t do it in the case of Publius or a corporate whistleblower? But in this case, the court order is based to a large degree on the problematic nature of the blog itself — that it simply called Cohen a whore and a skank, and so was focused primarily on the alleged defamation, rather than any other substantive comment.

So it seems to me that the court got it right. I agree with Dan on the general principle that anonymity can be very beneficial and should be protected in many cases; I certainly don’t want to encourage the unmasking of any Publii. But there are exceptions to that standard, such as in the case of personal attacks like Autoadmit or Kathy Sierra, or Skanks in NYC. In those cases, I tend to fall back on a different maxim: Sunlight is the best disinfectant.

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 [...]]]> 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).

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. [...]]]> 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.

The issues fall into at least four categories:

1) Antitrust: Randal Picker, Christopher Suarez, and James Grimmelmann have addressed the proposed settlement’s likely effects on competition in the field. On the surface, it appears that Google Books would be a good alternative to companies like Amazon and Elsevier, offering a new intermediary designed to drive down the cost of access to knowledge. However, academics have pointed out several specific terms of the proposed settlement that threaten to reduce competition in the field of digitized books in the long term.

2) Pricing: Here the basic worry is that Google Books could become like the big intermediaries criticized by the open access movement for excessive pricing of academic, scientific, and technical works. Universities have been burned in the past by nonchalantly accepting big publishers’ mergers and growing control over a corpus of academic journals. Though Google is supposed to bargain on behalf of book users to reduce prices charged by book owners, the record of private insurers in accomplishing the same “middleman” role is not heartening.

The proposed settlement envisions that Google will stand between consumers and producers of knowledge. It will play a role similar to that of private insurers in standing between providers and patients—determining what access people get, how much they have to pay, etc. The worrisome aspect of that arrangement is that providers and private insurers are both very concentrated in the US, and consumers (i.e., the businesses and individuals who buy insurance plans) are not. That’s a key reason why the US spends so much more on health care than other industrialized nations, without getting better results, access, or quality.

I’d expect to see the same dynamics play out in the context of books if this settlement goes through, because it promises to create parallel levels of concentration in the Registry (imagine all hospitals combined into one bargaining unit) and Google (similarly, imagine a merger of Cigna, United Health, and WellPoint). Bilateral monopolies aren’t pretty for those on the outside — think of ever-rising ticket prices for fans that result from the negotiations of the players’ union and baseball owners. That’s why I think a “public option” is as important in digitized books as it is in health care. And at the very least, ongoing antitrust supervision, like that provided for similar schemes in the past, should apply here.

3) Privacy: Here I can’t do better than EPIC, a leading group on these issues. Here are their concerns:

Civil liberties organizations are urging Internet users to tell Google to adopt privacy protections for the Google Book Search. A judge in New York will determine later this year whether to approve the proposed settlement that would establish the service and give Google access to detailed personal information without any privacy safeguards.

The chart at the bottom of that page shows how the settlement threatens the “right to read anonymously.”

4) Cultural Power: Authors are concerned about Google’s power over the distribution, visibility, and pricing of their work. The Registry’s proposed leadership is not sufficiently representative of the wide range of publishers and authors. Perhaps a) different types of books should be subject to different types of boards of leadership, and b) all decisions about distribution, visibility, and pricing be made in an open manner. As for 4a), I think academic author in particular should worry about their books being subject to the types of revenue strategies pursued by, say, romance novelists or self-help authors. We need a separate board to handle academic books, or at least university press books. As for 4b): Google will counter that it needs to be secretive here, as it is in so many other areas, because unsavory actors could game the system. But Google should at least concede that concerns about gaming are lower in the book space than in the search space, since search engine optimizers are unlikely to publish fake books to game the system. Also, there could be a relaxation of these terms of openness as long as there is some open alternative.

In conclusion: for me, the key problems law can address are

a) extraordinary pricing power by Google/Registry alliance,
b) lack of transparency about how terms will be set,
c) lack of a public alternative to serve the people that Google fails to serve, and
d) threats to privacy

How do we solve these problems? I would propose the following responses:

a) guarantee of some form of free or subsidized access for those making under 300% of federal poverty level wages,
b) either open all Registry proceedings or at least follow Danny Weitzner’s approach to “extreme factfinding” here,
c) condition the settlement on either i) Google’s giving a copy of the digitized corpus to the government in exchange for the cost of scanning and a reasonable rate of return and/or ii) the government requiring all works copyrighted after 2009 to be digitally deposited and part of a corpus that the government could operate and make available on its own terms, and
d) allow EPIC and others to negotiate with relevant FTC policymakers to build in privacy safeguards.

I know these terms are all likely to be controversial. A public option in particular should respect the autonomy and growth of private search in this field — the organization of knowledge is an exciting field for private sector innovation. But I hope one thing is clear: it would be unjust to allow the parties to settle the case without giving a wide range of stakeholders an opportunity to fully vent their concerns. And given the likely need to involve the FTC, DOJ, and Copyright Office in ongoing supervision of the settlement terms, it is time for some inter-branch cooperation and coordination on the issue.

Image Credit: *keng.

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 [...]]]>

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.

D IS FOR DIGITIZE: A Conference on the Google Book Search Lawsuit

New York Law School, Thursday, October 8 through Saturday, October 10, 2009

Everything about the Google Book Search project is larger than life, from [...]]]> 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:

D IS FOR DIGITIZE: A Conference on the Google Book Search Lawsuit

New York Law School, Thursday, October 8 through Saturday, October 10, 2009

Everything about the Google Book Search project is larger than life, from Google’s audacious plan to digitize every book ever published to the gigantic class action settlement now awaiting court approval. D is for Digitize will give this complex lawsuit the sustained attention it deserves. An interdisciplinary lineup of academics and practitioners will examine the settlement through the lenses of copyright, civil procedure, antitrust, the publishing industry, information policy, and literary culture. The conference is timed to coincide with the rescheduled fairness hearing in the Google Book Search case, which will be held on Wednesday, October 7 in New York City, just five blocks from New York Law School.

I look forward to seeing those interested in the future of access to knowledge at the conference, which I plan to attend.

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 [...]]]> 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)

[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. [...]]]> 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.

First, I think we have to fully understand just how big Google’s present operation is. They’re using somewhere between 100,000 and a million computers to index the web. Is a program like SETI or other distributed computing systems capable of “storing” that in many computers? Indexing the web is a project orders of magnitude more storage- and processing-intensive than hosting an online encyclopedia like Wikipedia, or even hosting the collaborative editing process that is Wikipedia’s “secret sauce.”

Nevertheless, there are some steps that could lead to an infrastructure for a public option in search. Google’s supporters have frequently argued that it needs to scan and store books because they could be lost in disasters. Couldn’t a similar case be made that government or an NGO needs to index Google’s archive of web pages and books in case, say, a tornado hits a central Google storage facility? At what point does it become critical infrastructure?

Note that there should be a strict separation in such a proposal between information a search engine company properly owns (such as user data patterns, records of how many people clicked on what, etc.), and an underlying collection of materials that would be “archived” as a base of content for the public option. For example, to take one small slice of search, books: I would argue that any settlement of the current lawsuit between Google and publishers should require the U.S. Copyright Office to require digital deposit of all copyrighted books in the US, as a database for a future public option in search. In antitrust terms, the digitized copies are an “essential facility” for future advances in book search–particularly if the cozy relationship between Google and a books “Registry” envisioned in the current settlement documents is ratified by the courts.

The big question here is whether we want a government entity to do all this archiving for the web generally, or some publicly funded third party. Some might think that the latter entity is a better bet in terms of privacy protections. But the more one understands how flimsy a legal barrier separates government actors from “private” data stores, the less difference it makes whether the database used for the public option is in governmental or NGO hands.

Finally, even if a public alternative in search seems unlikely, I deeply believe we need to guarantee one in book search. Note that in web searches, Google’s role is usually only to direct us toward what is most relevant–not to ration access to knowledge, a role it so often plays in book search with snippets, restricted portions, etc. In this new role it is much more like a private health insurer rationing access to care than it is your traditional Web 2.0 info-company organizing access to the web by creatively accessing the wisdom of crowds. It’s a middleman, and if we’ve learned anything from the health care field, it’s that highly concentrated provider markets combined with highly concentrated insurer markets lead to ever-higher prices for everyone outside that charmed circle of bilateral monopoly. Here’s how Joseph White characterized the developments in health care:

One might wonder why consolidation among insurers did not allow them to resist the providers’ demand for increased payments. The simple answer is that there were two concentrated parts of the market and one fragmented part. The insurers had to choose between fighting a full-pitched battle with the providers or exploiting their own market power vis-a-vis employers. Raising premiums to employers was a lot easier.

Substitute “publishers” for “providers,” “Google” for “insurers,” and “readers” for “employers” in that dynamic, and you have a pretty good sense of how the book search settlement will ultimately play out without some alternative service. Right now, Medicare is the only entity exercising genuine price discipline and providing universal access in the US health field. We need something like it in book search.

PS: I have more thoughts on Doctorow’s piece in the comments section of this interesting blog post by Berin Szoka. I really hope Doctorow does not endorse First Amendment protection for whatever dominant search engines do.

What [...]]]> 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.

In other words, the Government has created a one-way mirror: the public can peer into agency workings, data, and policymaking but the agency behind the mirror cannot glance back into our personal lives.  And why would we even think that President Obama, the CDC, or NASA has the time or policy-driven motive to see the movies we love, the albums we bought, or the amount of money we spent at a bar?  As a commentator on eParticipation noted: “While the UK Home Office is planning to gain access to social networking sites to snoop on its citizens, the Obama administration seeks to use the same technology to engage with voters and find out what they want.”  Agencies’ recent forays into Facebook environment reflect this intuition.  Agencies have created Facebook “fan pages” that allow Facebook users to join, receive updates (transparency), and conduct discussions on the wall or in forums (participatory/collaborative).  Agencies, however, cannot peer inside the lives of their fans: it is a one-way mirror of sorts.

Tomorrow I will discuss the normative implications of the one-way mirror and would love your feedback on my intuitions.

H/T to the ever-insightful Paul Ohm who shared with me his insights on the one-way mirror.

Worries about the “death of privacy” have been prevalent for some time. We increasingly lack control over [...]]]> 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:

Robert Lee Hale contended that the sharp theoretical separation of public and private obscured the actual proactive role of public power in structuring the so-called private bargains that had such an immense effect on the distribution of wealth and power in American society. . . . [T]he private sphere is positively constructed by law and government and is consequently always suffused with (as opposed to immune from) sovereignty, force, violence, and coercion.

This is particularly true of communications technologies, which are often of great interest to government regulators. As Michael D. Birnhack and Niva Elkin-Koren explain in their brilliant article The Invisible Handshake, new and hidden exchanges of information for power are key to government-business relations:

Law enforcement agencies seek to enhance their monitoring capacity and online businesses seek to prevent fraud and combat piracy while strengthening their ties with authorities. . . . The invisible hand [of market-based communications] turned out to be very useful for the State, and it is now being replaced with a handshake, which, likewise, is invisible. . . . The use of private parties for executing government roles may create an unholy alliance between governments that wish to exercise their power and large online players that seek to maintain and strengthen their dominant role in the market.

Birnhack and Elkin-Koren were prophetic. The kind of government-business alliances they feared have become de rigeur in the national surveillance state. Both Chris Hoofnagle and Jon D. Michaels have described the development in some detail. Michaels’s story of FedEx is indicative of the larger trend:

[After FedEx's] CEO announced his company’s commitment to cooperating with the government “up to and including the line on which we would be doing a disservice to our shareholders” . . . FedEx has received a range of government perks. For instance, FedEx has been afforded special access to government security databases, presumably giving it a range of advantages over non-cooperating competitors. It has also been awarded a prized seat on the FBI’s regional terrorism task force (it is the only private company so represented) and thus has even more insider access to international security threats, again presumably well before its competitors receive such warnings. Moreover, FedEx has received an exceptional license from the State of Tennessee to develop an internal police force . . . .

Hoofnagle proposes that “the Privacy Act should apply to private sector companies that sell information to the government,” not just to the government itself. It seems to me that the first step to wisdom in this area is to realize that whatever we fear from direct government collection of data, we should fear from ostensibly “private” third parties that do the same. Otherwise, the ailing “public/private” divide could cause many more “deaths” of individual privacy.

As Jacqueline Lipton noted Google Maps has enabled the persistence of race discrimination. Google [...]]]> 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.