Speaking of exciting developments, it appears that the Stop Online Piracy Act (SOPA) is dead, at least for now. House Majority Leader Eric Cantor has said that the bill will not move forward until there is a consensus position on it, which is to say, never. Media sources credit the Obama administration’s opposition to some of the more noxious parts of SOPA, such as its DNSSEC-killing filtering provisions, and also the tech community’s efforts to raise awareness. (Techdirt’s Mike Masnick has been working overtime in reporting on SOPA; Wikipedia and Reddit are adopting a blackout to draw attention; even the New York City techies are holding a demonstration in front of the offices of Senators [...]]]> Thanks to Danielle and the CoOp crew for having me! I’m excited.

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

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

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

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

Cross-posted at Info/Law.

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

They write:

These bills, and the enforcement philosophy that underlies them, represent a dramatic retreat from this country’s tradition of leadership in supporting the free exchange of information [...]]]>

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

They write:

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

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

Note: Corrected typo in first paragraph.

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

Google+ introduces us to circles, where you can take the 800 or so “friends” you would have on [...]]]> I love shiny new toys. Sometimes, its a crisp new book (Pauline Maier, for one… thanks Gerard!); other times, it’s something plush and adorable, like the yellow Angry Birds doll my 5-year-old nephew “bought” for me last month. Last week, it was Google+.

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

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

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

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

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

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

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

Next came the conversation.  We talked about how increasingly social media activity is part of one’s life’s biography.  Anything said and done in social network spaces becomes part of who you are in our [...]]]> The question that I had been dreading came at last: “Mom, can I have a Facebook page?”  My daughter provided a strong defense: she’s 13, so she meets Facebook’s Terms of Service age requirement; she’s nearly an adult in her religion’s eyes (her bat mitzvah is in a week); past practices proves she’s responsible; and well, she feels ready.  (And I just discovered, she’s done her homework: see this Yahoo Answers! “My mom won’t let me get a Facebook page, how do I convince her?” thread that I found on my computer).

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

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

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

For some boosters, these are not terribly important questions: the logic of the net itself assures progress. But for Chris Lehmann, the highflying internet-academic-industrial complex has failed to think critically [...]]]> What encapsulates the ethos of Silicon Valley? Promoting his company’s prowess at personalization, Mark Zuckerberg once said that, “A squirrel dying in front of your house may be more relevant to your interests right now than people dying in Africa.” Scott Cleland argues that “you can’t trust Google, Inc.,” compiling a critical mass of dubious practices that might seem quite understandable each taken alone. Apple’s “reality distortion field” is the topic of numerous satires. As the internet increasingly converges through these three companies, what are the values driving their decisionmaking?

For some boosters, these are not terribly important questions: the logic of the net itself assures progress. But for Chris Lehmann, the highflying internet-academic-industrial complex has failed to think critically about a consolidating, commercialized cyberspace. Previously featured on this blog for his book, Lehmann’s review of Clay Shirky’s Cognitive Surplus is fairly scathing:

With the emergence of Web 2.0–style social media (things like Facebook, Twitter and text messaging), Shirky writes, we inhabit an unprecedented social reality, “a world where public and private media blend together, where professional and amateur production blur, and where voluntary public participation has moved from nonexistent to fundamental.” This Valhalla of voluntary intellectual labor represents a stupendous crowdsourcing, or pooling, of the planet’s mental resources, hence the idea of the “cognitive surplus.” . . .

[But why] assign any special value to an hour spent online in the first place? Given the proven models of revenue on the web, it’s reasonable to assume that a good chunk of those trillion-plus online hours are devoted to gambling and downloading porn. Yes, the networked web world does produce some appreciable social goods, such as the YouTubed “It Gets Better” appeals to bullied gay teens contemplating suicide. But there’s nothing innate in the character of digital communication that favors feats of compassion and creativity; for every “It Gets Better” video that goes viral, there’s an equally robust traffic in white nationalist, birther and jihadist content online. . . .

What’s common to these parables of the information marketplace is a vision of an uncoerced social order within the reach of any suitably wired and enterprising soul inclined to donate a microsliver of that unfathomably huge surplus of time to crowdsourced tasks. This being the general drift of our social destiny, Shirky waves away the old-school leftist critique of crowdsourced content as “digital sharecropping” as so much “professional jealousy—clearly professional media makers are upset about competition from amateurs.” . . .

[Shirky ignores] the small matter of what, exactly, is being produced and exchanged in the social networks [he] hails as the cutting edge of new-economy innovation. Services such as PickupPal and CouchSurfing—a site for tourists seeking overnight stays in the homes of natives—are mainly barter clearinghouses, enabling the informal swapping of already existing services and infrastructure support. Meanwhile, the Linux and Apache projects are the web equivalents of busmen’s holidays . . ..

The one hint of possible production for exchange value in Cognitive Surplus unwittingly shows just how far this brand of web boosterism can go in studied retreat from economic reality; it involves a study by Eric von Hippel, a “scholar of user-driven innovation,” who found that a Chinese manufacturer of kites sought out a crowdsourced design from an outfit called Zeroprestige, which worked up shared kite designs using 3D software. . . [This] is the logic of outsourcing metastasized. Like the sort of fee-shifting exploitation of content providers that prevails in online commerce on the [Chris] Anderson model—and, I should stipulate, in underpaid “content farms” operated within the orbit of my own corporate parent, Yahoo—outsourcing is a cost-cutting race to the bottom. . . . It’s certainly not as if those lower costs will translate into higher wages for China’s sweated, open-shop manufacturing workforce—the people who will end up making the kites in question.

Scholars Trebor Scholz, Miriam Cherry, and Jonathan Zittrain have explored the regressive economics of cyberspace in many interesting ways. Lehmann has crystallized these concerns. In Shirky’s defense, it’s pretty hard to do elite work in internet studies & consulting without boarding the cyberutopian bandwagon. Criticize too loudly, and you’ll be dismissed as old-fashioned, left-wing, or lacking understanding of the technology. (Of course, much of the technology is a black box, so that last critique doesn’t have that much sting for those in the know.)

But there are some encouraging signs of dissent. For example, Princeton University Press recently published a novel by Shumeet Baluja, a senior staff research scientist at Google, focused on the potential privacy violations enabled by Silicon Valley data centralization. As the press explains, the novel “raises serious ethical questions about today’s technological innovations and how our most confidential activities and minute details can be routinely pieced together into rich profiles that reveal our habits, goals, and secret desires–all ready to be exploited in ways beyond our wildest imaginations.” No one should celebrate a cornucopia of web-enabled possibilities without acknowledging the many compromises we make to access them.

As Slavoj Zizek has noted, on today’s web, “Everything thus becomes accessible, but only as mediated through a company which owns it all — software and hardware, content and computers.” Those who hold the “master switches” can “filter the software they provide to give [their] ‘universality’ a particular twist depending on commercial and ideological interests.” The work of Lehmann, Baluja, and Eli Pariser is a welcome corrective to the cyber-utopian bias in today’s networked public sphere.

Image Credit: Emilie Ogez.

Research tells us that 90% of people seek advice from family and friends as part of the decision making process. This “Friend Effect” is apparent in most of our decisions and often outweighs other facts because people feel more confident, smarter and safer with the wisdom of their trusted circle.

Today, Bing is bringing the collective IQ of the Web together with the opinions of the people you trust most, to bring the “Friend Effect” to search. Starting today, you can receive personalized search results based on the opinions of your [...]]]> A small corner of the world of search took another step toward personalization today, as Bing moved to give users the option to personalize their results by drawing on data from their Facebook friends:

Research tells us that 90% of people seek advice from family and friends as part of the decision making process. This “Friend Effect” is apparent in most of our decisions and often outweighs other facts because people feel more confident, smarter and safer with the wisdom of their trusted circle.

Today, Bing is bringing the collective IQ of the Web together with the opinions of the people you trust most, to bring the “Friend Effect” to search. Starting today, you can receive personalized search results based on the opinions of your friends by simply signing into Facebook. New features make it easier to see what your Facebook friends “like” across the Web, incorporate the collective know-how of the Web into your search results, and begin adding a more conversational aspect to your searches.

The announcement almost perfectly coincides with the release of Eli Pariser’s book The Filter Bubble, which argues that “as web companies strive to tailor their services (including news and search results) to our personal tastes, there’s a dangerous unintended consequence: We get trapped in a “filter bubble” and don’t get exposed to information that could challenge or broaden our worldview.” I have earlier worried about both excessive personalization and integration of layers of the web (such as social and search, or carrier and device). I think Microsoft may be reaching for one of very few strategies available to challenge Google’s dominance in search. But I also fear that this is one more example of the “filter bubble” Pariser worries about.

Like Evgeny Morozov, Pariser persuasively demonstrates the downside of “community building” on the web; filter bubbles can be astonishingly insular. It’s an important message. Oren Bracha and I have shown the critical importance of search technology in affecting both users’ autonomy and possibilities for democracy. And as I noted last summer:

Heraclitus wrote that “for the waking there is one world, and it is common; but sleepers turn aside each one into a world of his own.” In our age of fragmented lifeworlds, narrowcasting, and personalization, internet searchers are increasingly like Heraclitus’s sleepers. They will increasingly consume customized media on the persons and events they take an interest in. Many will unwittingly enter a media environment shaped in ways they can’t understand. While some authors have lamented the effects of the “Daily Me” on politics, and others have noted the Kafkaesque implications of black box databases, few have considered the intersection of these trends. They threaten to make a scholarly understanding of media consumption difficult, as we have less and less objective sense of what’s really being presented as choices.

It’s a real tribute to Pariser’s persistence that he convinced Silicon Valley engineers to acknowledge and grapple with this reality. We’ll need many more thinkers like him to wake us from our technological somnambulism.

On the other hand, perhaps the integration of social networking into search can make search results a bit more understandable to users. Pariser suggests that even people inside Google can’t fully understand how its algorithms result in a given information environment for a user of its services:

Even if you’re not logged into Google, for example, an engineer told me there are 57 signals that the site uses to figure out who you are: whether you’re on a Mac or PC or iPad, where you’re located when you’re Googling, etc. And in the near future, it’ll be possible to “fingerprint” unique devices, so that sites can tell which individual computer you’re using. . . .

As Google engineer Jonathan McPhie explained to me, [personalization is] different for every person – and in fact, even Google doesn’t totally know how it plays out on an individual level. At an aggregate level, they can see that people are clicking more. But they can’t predict how each individual’s information environment is altered.

In general, the things that are most likely to get edited out are the things you’re least likely to click on. Sometimes, this can be a real service – if you never read articles about sports, why should a newspaper put a football story on your front page? But apply the same logic to, say, stories about foreign policy, and a problem starts to emerge. Some things, like homelessness or genocide, aren’t highly clickable but are highly important.

If people have to choose between algorithmic and friend-based personalization, the latter may be more transparent than the former. On the other hand, the Bing-Facebook combine isn’t rushing to make its own methods public, so maybe it’s a wash.

Volume 58, Issue 4 (April 2011)

Articles

Comments

The story struck a nerve, not only with the affected community, but with the [...]]]> Recently the New York Times carried a front page story about an eighth grade girl who foolishly took a nude picture of herself with her cell phone and sent it to a fickle boy – sexting. The couple broke up but her picture circulated among her schools mates with a text message “Ho Alert” added by a frenemy.  In less than 24 hours, “hundreds, possibly thousands, of students had received her photo and forwarded it. In short order, students would be handcuffed and humiliated, parents mortified and lessons learned at a harsh cost.”  The three students who set off the “viral outbreak” were charged with disseminating child pornography, a Class C felony.

The story struck a nerve, not only with the affected community, but with the Times’ readers as well.  Stories about the misuse and dangers of technology provide us with opportunities to educate our students, and us. In a Washington State sexting incident, for example, the teen charged had to prepared a public service statement warning other teens about sexting to avoid harsher criminal penalties.  But the teen’s nude photo is still floating around.  Information has permanence on the internet.

Few of us appreciate how readily obtainable our personal information is on the internet.  Just google your name and see what you learn about yourself.  One of my students did and found, along with the usual links to law school and other websites like Facebook, a statement he made while running for an office in the Christian Legal Society posted on a website unknown to him.  Without paying he found his name, home town and state, and a list of his immediate family members.  Googling his phone number the first link that popped up was a map that located where he lived.  The next link was to spokeo.com “a people search engine that organizes vast quantities of white-pages listings, social information, and other people-related data from a large variety of public sources.”  According to Spokeo, its “mission is to help people find and connect with others, more easily than ever.” This site provided, without charge, the initials of all his family members, his approximate age and that of his parents and sister.  It revealed the family’s home address, approximate home value and length of residence.  Then my student saw a Google picture of his house and himself walking to his car with his backpack, presumably leaving to go to school.  He was stunned.

Much of this information reaches the internet through social networking catching us, and our students, off guard.  Some of us have Facebook accounts and followers on twitter, while others, concerned about privacy, think we can avoid internet scrutiny altogether, but alas we cannot.  While Facebook is more of a “socializing” network, LinkedIn calls itself a “professional network” designed to promote professional contacts.  It too has a “friend” feature and I have received email requests from students and law faculty I vaguely know to join their LindedIn network.  I’ve declined. Just how “social” should we be in our professional capacity as law professors, students and lawyers?    This question plagues all of us in the legal arena, even judges.

In 2009 the Judicial Ethics Advisory Committee of the Florida Supreme Court, in addressing several issues about a judge’s use of a social networking site, wrote that these sites generally serve two purposes.  First and foremost they are places “to post pictures, comments, and other material that visitors to the site can view.”  But increasingly networking sites are places “to identify a member’s ‘friends’….[,] a person who requests to be identified as the member’s ‘friend’”. The Committee concluded that “a judge may [not] add lawyers who may appear before the judge as ‘friends’ on a social networking site, [or] permit such lawyers to add the judge as their ‘friend.’”

Should we develop similar networking standards for professors and their students?  I plan to explore this question in my torts class this fall.  So I am constructing a series of problems that involve social media to keep them engaged in thinking about tort law.  This also is an opportunity to get them thinking about how their use of social media may raise ethical and professional issues starting as early as law school.  Wish me luck.

As the debate heats up and accelerates in internet time, it’s a pleasure to turn to Siva Vaidhyanathan’s The Googlization of Everything, a carefully considered take on the company composed over the past five years. After this week is over, no one is going to really care whether Google properly punished JC Penney for scheming its way to the top non-paid search slot for “grommet top curtains.” But [...]]]> Google’s been in the news a lot the past month. Concerned about the quality of their search results, they’re imposing new penalties on “content farms” and certain firms, including JC Penney and Overstock.com. Accusations are flying fast and furious; the “antichrist of Silicon Valley” has flatly told the Googlers to “stop cheating.”

As the debate heats up and accelerates in internet time, it’s a pleasure to turn to Siva Vaidhyanathan’s The Googlization of Everything, a carefully considered take on the company composed over the past five years. After this week is over, no one is going to really care whether Google properly punished JC Penney for scheming its way to the top non-paid search slot for “grommet top curtains.” But our culture will be influenced in ways large and small by Google’s years of dominance, whatever happens in coming years. I don’t have time to write a full review now, but I do want to highlight some key concepts in Googlization, since they will have lasting relevance for studies of technology, law, and media for years to come.

Cryptopicon

Dan Solove helped shift the privacy conversation from “Orwell to Kafka” in a number of works over the past decade. Other scholars of surveillance have first used, and then criticized, the concept of the “Panopticon” as a master metaphor for the conformity-inducing pressures of ubiquitous monitoring. Vaidhyanathan observes that monitoring is now so ubiquitous, most people have given up trying to conform. As he observes,

[T]he forces at work in Europe, North America, and much of the rest of the world are the opposite of a Panopticon: they involve not the subjection of the individual to the gaze of a single, centralized authority, but the surveillance of the individual, potentially by all, always by many. We have a “cryptopticon” (for lack of a better word). Unlike Bentham’s prisoners, we don’t know all the ways in which we are being watched or profiled—we simply know that we are. And we don’t regulate our behavior under the gaze of surveillance: instead, we don’t seem to care.

Of course, that final “we” is a bit overinclusive, for as Vaidhyanathan later shows in a wonderful section on the diverging cultural responses to Google Street View, there are bastions of resistance to the technology:

One search engine professional, Osamu Higuchi, posted an open letter to Google staff in Japan on his blog in August 2008. The letter urged Google staff to explain to their partners in the United States that Street View demonstrates a lack of understanding of some important aspects of daily life in Japan. Osamu urged Google to remove largely residential roads from Street View. “The residential roads of Japan’s urban areas are part of people’s living space, and it is impolite to photograph other people’s living spaces,” Osamu wrote. . . .

A person walking down the street peering into residents’ yards would be watched right back by offended residents, who would consider calling the police to report such dangerous and antisocial behavior. But with Google Street View, the residents can’t see or know who is peeping. Osamu’s pleas and concerns were shared by enough others in Japan that by May 2009, Google announced it would reshoot its Street View images of Japanese cities with the cameras mounted lower, to avoid peering over hedges and fences.

There are a number of other examples in the book of technology being modified to adopt to cultural norms. But the dominant story is of cultural norms being reshaped by deployment of new technologies.

Public Failure

Progressives often cite “market failure” as a reason for regulation. But the term itself has a hidden laissez-faire bias, implying that markets generally succeed and that intervention is extraordinary. Vaidhyanathan balances the playing field by introducing the idea of the “public failure,” which itself is parasitic on a larger vision of endeavors naturally performed or sponsored by government or civil society. As he explains,

[N]eoliberalism. . . .had its roots in two prominent ideologies: techno-fundamentalism, an optimistic belief in the power of technology to solve problems . . . and market fundamentalism, the notion that most problems are better (at least more efficiently) solved by the actions of private parties rather than by state oversight or investment.

Neoliberalism [included] . . . substantial state subsidy and support for firms that promulgated the neoliberal model and supported its political champions. But in the end the private sector calls the shots and apportions (or hoards) resources, as the instruments once used to rein in the excesses of firms have been systematically dismantled. . . . .

Google has deftly capitalized on a thirty-year tradition of “public failure,” chiefly in the United States but in much of the rest of the world as well. Public failure, in contrast, occurs when instruments of the state cannot satisfy public needs and deliver services effectively. This failure occurs not necessarily because the state is the inappropriate agent to solve a particular problem (although there are plenty of areas in which state service is inefficient and counterproductive); it may occur when the public sector has been intentionally dismantled, degraded, or underfunded, while expectations for its performance remain high.

Vaidhyanathan’s call for a “Human Knowledge Project” in response to this trend is one of the few tech policy proposals that is bold, ambitious, and comprehensive enough to address the challenges posed by privatized knowledge systems. I will address that in more detail in a future post; for those dying to know my thoughts, here is a video where I a) analogize Google’s role in the knowledge system to private insurers’ role in the health system, and b) propose a Medicare-like alternative, or “public option,” to assure a transparent baseline of access to knowledge for those not served by Google and similar systems.

There are many reasons to think that Google will continue to dominate the general purpose search field. Sure, searchers and advertisers can access a vibrant field of also-rans. But most users will always want a shot at Google for serious searching and advertising, just as a mobile [...]]]> Search neutrality is on the rise in Europe, and on the ropes in the US (or at least should be, according to James Grimmelmann). We barely have net neutrality here, and the tech press bridles at the thought of a sclerotic DC agency regulating god-like Googlers. I want to question its conventional wisdom, by proving how modest the “search neutrality” agenda is now, and how well it fits with classic ideals of neutrality in law.

There are many reasons to think that Google will continue to dominate the general purpose search field. Sure, searchers and advertisers can access a vibrant field of also-rans. But most users will always want a shot at Google for serious searching and advertising, just as a mobile internet connection is no substitute for a high bandwidth one for many important purposes.

Given these parallels, I’ve compared principles of broadband non-discrimination and search non-discrimination. But virtually every time the term “search neutrality” comes up in conversation, people tend to want to end the argument by saying “there is no one best way to order search results—editorial discretion is built into the process of ranking sites.” (See, for example, Clay Shirky’s response to my position in this documentary.) To critics, a neutral search engine would have to perform the (impossible) task of ranking every site according to some Platonic ideal of merit.

But on my account of neutrality, a neutral search engine must merely avoid certain suspect behaviors, including:

1) Stealth marketing (secretly taking cash or other consideration in exchange for elevating the profile of sites in organic search results)

2) De-indexing without notice and explanation (removing legal, non-spam sites from the index after they have been included in the search engine’s corpus, and failing to give some explanation to the removed site as to why it was removed)**

I think my concept of neutrality is much closer to the way the term is normally used in political philosophy (where, say, a “neutral state” is one that does not favor any particular conception of the good, rather than one that accords exactly the right amount of respect to each conception of the good). Neutrality is a very broad term, and the obvious differences between the technical operation of physical infrastructure and search engines should not stop us from applying certain broad principles to each entity.

Neutral State, Neutral Search Engine

What do we mean when we talk about search neutrality? Opponents of net neutrality have called the term too vague, identifying “31 flavors” of neutrality to support any ideological commitments under the sun. But Michael Powell’s “four freedoms” have proven relatively uncontroversial. I think a similar consensus will coalesce around stealth marketing and de-indexing. A brief review of how one insightful political philosopher conceptualized neutrality may help get us there.

In his “The Ideal of a Neutral State” (in this collection), Peter Jones helps us understand key controversies in conceptualizing neutrality.* His central insight is a recognition of the familiar, “ordinary language” sense in which neutrality is used. The “question of neutrality often only arises in a conflict; a commitment to neutrality indicates a willingness to help or hinder parties to an equal degree.”

By examining a list of examples of such conflicts, Jones demonstrates that “being neutral” can take different forms in different contexts. For instance, a nation may have to refrain from helping or hindering either side in an international conflict if it is to remain neutral; a judge may have to ensure that there are strict guidelines for the presentation of evidence if he is to be seen as a neutral arbiter of a fair decisionmaking process. Based on examples like these, Jones argues that there are two senses of neutrality, negative and positive. Whereas negative neutrality can be achieved simply through inaction, positive neutrality “is a matter of establishing certain conditions of equality among individuals, conditions which ‘neutralise’ certain factors that might otherwise enable one individual to fare better than another.”

Does a search engine have a duty of “positive neutrality?” No, but much of what it does amounts to a similar effort. If some scheming company starts “link farms” to make its sites more visible, it should be punished. It’s gotten an unfair advantage. We can, in general, count on the search engine to promote its users’ interests by detecting and deterring that kind of advantage-seeking.

But there are many other situations where a search engine’s interests may coincide more with those of its best advertisers, rather than its users’. As Brin & Page stated, “we expect that advertising funded search engines will be inherently biased towards the advertisers and away from the needs of the consumers.” We’ve been in this situation repeatedly in the communications context, and the neutral state has come up with a solution: require both conduits and content providers to disclose whether they are raising the profile of those who pay them. Stealth marketing is unfair to consumers and to competitors of the stealth marketer. The state realizes that money already confers an enormous advantage in the battle for mindshare, and requires, at the very least, that such advantage be disclosed when it is bought. It is right to neutralize certain factors (such as sub rosa payments) that might enable one source to fare better than another.

Opaque Search Technology is a Widespread Problem

Search engines are only one of many intermediaries that use opaque search technology. Moreover, to the extent search engines become some magical category of zero-regulation, expect other entities to incorporate search technology to obtain the same advantages that search engines have. The regulatory arbitrage game is just too easy to play.

Given these looming problems, some entity should be able to audit the systems used by any dominant intermediary to find out if stealth marketing and de-indexing without notice is happening. I don’t necessarily care if the entity is public or private—we just need some group to be able to “look under the hood.” And if anyone says “it’s just too complex to explain or understand,” consider the kind of black box future that position portends.

Looking ahead, I don’t actually think this disclosure remedy will do much to change consumer or advertiser behavior. Dominant search engines, online retailers, device makers, and social networks have enormous advantages over rivals now, and as Tim Wu has shown, a “Cycle” of early cutthroat competition has repeatedly congealed into oligopoly in the communications and media fields. But even ex post disclosure will at least allow future historians, academics, and policymakers to understand how our information environment was shaped.

In the long term, we’ll probably need to have some publicly funded alternative to dominant internet intermediaries, just as we have a Postal Service to serve those who can’t afford FedEx, or Medicare to serve those who are too old or disabled to get reasonably priced private insurance, or arts subsidies to help forms of expression that the market will never underwrite. Disclosure helps us understand how urgent the need is for an alternative.

*Peter Jones, “The Ideal of the Neutral State” in Robert E. Goodin and Andrew Reeve (eds.), Liberal Neutrality (Routledge, 1989).

**My work in the article “Asterisk Revisited” has also led me to believe that a trademark holder should appear somewhere on the top results page when its trademark, without more, is a search query. But I don’t believe current law requires that, and I don’t want to clutter this post with what would certainly be a complex discussion of trademark policy.

Image Credit: Steve Rhodes.

Google Inc. increasingly is promoting some of its own content over that of rival websites when users perform an online search, prompting competing sites to cry foul. The Internet giant is displaying links to its own services—such as local-business information or its Google Health service—above the links to other, non-Google content found by its search engine. . . .

TripAdvisor LLC Chief Executive Stephen Kaufer said the traffic his site gets from Google’s search engine dropped by more than 10%, on a seasonally adjusted basis, since mid-October—just before Google announced the latest change [...]]]> As Google grows, so do fears about its possible overreach. A Wall Street Journal article quotes several companies worried that Google will use its dominance in search to invade their turf:

Google Inc. increasingly is promoting some of its own content over that of rival websites when users perform an online search, prompting competing sites to cry foul. The Internet giant is displaying links to its own services—such as local-business information or its Google Health service—above the links to other, non-Google content found by its search engine. . . .

TripAdvisor LLC Chief Executive Stephen Kaufer said the traffic his site gets from Google’s search engine dropped by more than 10%, on a seasonally adjusted basis, since mid-October—just before Google announced the latest change to the way its search engine shows information about local businesses. TripAdvisor.com, whose top source of traffic is Google, reviews hotels and other businesses frequented by travelers. . . .Google’s promotion of its own content over others’ has been one of many issues raised during the federal antitrust review of the company’s acquisition of ITA Software Inc., people involved in the discussions have said.

European antitrust authorities are also concerned. Jia Lynn Yang of the WaPo explains, “As the tech giant spreads its reach, it is making new enemies who fear that once Google steps onto their turf it will use its almighty search engine to quash them.” Anyone other than the top result may fear that Google has “hard coded bias” against them, in Ben Edelman’s memorable phrase.

This is a hard problem because a) Google’s ranking methods are secret, and b) Google’s results have been protected as speech by some courts. Therefore, even if a site wanted to sue Google on some kind of business tort theory, they might never get to discovery because the company could successfully characterize its rankings as a mere “opinion” of sites’ relevance.

But let’s just say that a disgruntled Google rival seeks not to change Google’s rankings, but to find out how they are generated. They are likely to run into the brick wall of trade secrecy—unless they can claim that the rankings violate some federal policy, like bans on stealth marketing. But even then, the challenger is going to run into real problems trying to understand exactly how Google ranks sites. What then?

I anticipated this problem four years ago, and I’ve been working on possible solutions since then. My latest installment is a piece calling for “qualified transparency” in powerful internet intermediaries, including Google. Somebody should be able to “look under the hood,” to assure sites like TripAdvisor or WebMd that they are not being unfairly trampled by Google Travel or Google Health.

Troubling questions about the power of search engines will persist, and erode the legitimacy of these institutions, as long as key operations of leading companies are shrouded in secrecy. Administrators must develop an institutional competence for continually monitoring rapidly-changing business practices. A trusted advisory council charged with assisting the Federal Trade Commission (FTC) and Federal Communications Commission (FCC) could help spot troubling practices early, and assist courts and agencies in adjudicating controversies concerning intermediary practices. An Internet Intermediary Regulatory Council (IIRC) would follow up on complaints made by competitors, the public, or when it determines that a practice deserves investigation. If it failed to reconcile conflicting claims, it could refer complaints to the FTC (which has developed expertise in both privacy and advertising law). An IIRC would need not only lawyers, but also engineers and programmers who could fully understand the technology affecting data, ranking, and traffic management practices.

An IIRC would research and issue reports on suspect practices by Internet intermediaries, while respecting the intellectual property of the companies it investigated. An IIRC could generate official and even public understanding of intermediary practices, while keeping crucial proprietary information under the control of the companies it monitors. An IIRC could develop a detailed description of safeguards for trade secrets, which would prevent anyone outside its offices from accessing the information. Another option would be to allow IIRC agents to inspect such information without actually obtaining it. An IIRC could create “reading rooms” for use by its experts, just as some courts allow restrictive protective orders to govern discovery in disputes involving trade secrets. The experts would review the information in a group setting (possibly during a period of days) to determine whether a given intermediary had engaged in practices that could constitute a violation of privacy or consumer protection laws. Such review would not require any outside access to sensitive information.

A status quo of unmonitored intermediary operations is a veritable “ring of Gyges,” tempting them to push the envelope with ranking practices which cannot be scrutinized or challenged. Distortions of the public sphere are also likely. While a commercially-influenced “fast-tracking” or “up-ranking” of some content past others might raise suspicions among its direct (but dispersed) victims, the real issues it raises are far broader. If an online ecology of information that purports to be based on one mode of ordering is actually based on another, it sets an unfair playing field whose biases are largely undetectable by lay observers. Stealth marketing generates serious negative externalities that menace personal autonomy and cultural authenticity. Moreover, the degree of expertise necessary to recognize these externalities in the new online environment is likely to be possessed by only the most committed observers.

Without something like an IIRC to authoritatively investigate matters, reports like Edelman’s (or accusations like the ones in the WSJ and WaPo articles) will erode public confidence in the fairness and soundness of search engines. Until something like it is established, suspicions of problematic intermediary behavior will continue to fester. A neutral third party could help put everyone’s minds at ease, lest Google start to resemble the “secretive elite” of derivatives trading.

Image Credit: A Google result appearing on Benjamin Edelman’s page.

Goldsmith, who takes cybersecurity very seriously, nevertheless finds himself “agreeing with those who think Assange is being unduly vilified.” He believes that “it is not obvious what law he has violated,” and Geoff Stone today said that many Lieberman-inspired efforts to expand the Espionage Act to include Assange’s conduct would be unconstitutional. Goldsmith asks:

What if there were no wikileaks and Manning had simply given the Lady Gaga CD to the Times? Presumably the Times would eventually have published most of the same information, with [...]]]> Don’t worry, it’s not another prolix post from me, just commentary on Jack Goldsmith’s Seven Thoughts on Wikileaks and Lovink & Riemens’s Twelve theses on WikiLeaks. (And here’s an FAQ for those confused by the whole controversy.)

Goldsmith, who takes cybersecurity very seriously, nevertheless finds himself “agreeing with those who think Assange is being unduly vilified.” He believes that “it is not obvious what law he has violated,” and Geoff Stone today said that many Lieberman-inspired efforts to expand the Espionage Act to include Assange’s conduct would be unconstitutional. Goldsmith asks:

What if there were no wikileaks and Manning had simply given the Lady Gaga CD to the Times? Presumably the Times would eventually have published most of the same information, with a few redactions, for all the world to see. Would our reaction to that have been more subdued than our reaction now to Assange? If so, why?

Lovink & Riemens provide something of an answer:

Traditional investigative journalism used to consist of three phases: unearthing facts, crosschecking these and backgrounding them into an understandable discourse. WikiLeaks does the first, claims to do the second, but omits the third completely. . . . What WikiLeaks anticipates, but so far has been unable to organize, is the “crowd sourcing” of the interpretation of its leaked documents. That work, oddly, is left to the few remaining staff journalists of selected “quality” news media.

Later, academics pick up the scraps and spin the stories behind the closed gates of publishing stables. But where is networked critical commentariat? Certainly, we are all busy with our minor critiques; but it remains the case that WikiLeaks generates its capacity to inspire irritation at the big end of town precisely because of the transversal and symbiotic relation it holds with establishment media institutions. . . .Therein lies the conflictual terrain of the political.

Perhaps the difference between the treatment of Assange and the NYT is a widespread sense that the “paper of record” simply must publish important news once it’s been revealed. But the Wikileaks situation confounds any model of objective journalists “finding facts” in the world. As the FAQ explains, “Wikileaks is only releasing cables in coordination with the actions of . . . five selected news organizations.” Like search engines, it challenges the traditional distinctions between conduit and content-provider that have governed our thinking about communications. As L & R put it,

One of the main difficulties with explaining WikiLeaks arises from the fact that it is unclear (also to the WikiLeaks people themselves) whether it sees itself and operates as a content provider or as a simple conduit for leaked data (the impression is that it sees itself as either/or, depending on context and circumstances). This, by the way, has been a common problem ever since media went online en masse and publishing and communications became a service rather than a product. . . . This might be why Assange and his collaborators refuse to be labelled in terms of “old categories” (journalists, hackers, etc.) and claim to represent a new Gestalt on the world information stage.

I have to admit, my initial read of this story was over-influenced by media reports that described Wikileaks as “dumping” documents. In fact, they have been selective; as Glenn Greenwald explains, “They have not released “thousands” of cables; they’ve released 1,193 — less than 1/2 of 1% of the total they possess.”

But I do think I was right about one thing: the Wikileaks story reveals a dangerously overstretched “superpower.” When Russia recommends a Nobel Prize for Assange, you know that they are pretty confident in their ability to decouple from the US’s overindebted, hollowed out economy. Just as trillions of dollars in war spending have emptied our coffers, military prerogatives also led to the DOD’s “data deluge blowback.” As Lovink puts it:

In the ongoing saga called “The Decline of the US Empire”, WikiLeaks enters the stage as the slayer of a soft target. It would be difficult to imagine it being able to inflict quite same damage to the Russian or Chinese governments, or even to the Singaporean – not to mention their “corporate” affiliates. In Russia or China, huge cultural and linguistic barriers are at work, not to speak of purely power-related ones, which would need to be surmounted. Vastly different constituencies are also factors there, even if we are speaking about the narrower (and allegedly more global) cultures and agendas of hackers, info-activists and investigative journalists. In that sense, WikiLeaks in its present manifestation remains a typically “western” product and cannot claim to be a truly universal or global undertaking.

The irony, of course, is that in its quest for openness, Wikileaks is likely to provoke extraordinary responses from government that make our security apparatus more like that of Russia or China. Lovink notes some uncomfortable parallels between Wikileaks and those it opposes:

WikiLeaks displays a stunning lack of transparency in its internal organization. Its excuse that “WikiLeaks needs to be completely opaque in order to force others to be totally transparent” amounts, in our opinion, to little more than Mad magazine’s famous Spy vs. Spy cartoons. You beat the opposition but in a way that makes you indistinguishable from it.

WikiLeaks is also an organization deeply shaped by 1980s hacker culture, combined with the political values of techno-libertarianism that emerged in the 1990s. . . . Lack of commonality with congenial, “another world is possible” movements drives WikiLeaks to seek public attention by way of increasingly spectacular and risky disclosures, thereby gathering a constituency of often wildly enthusiastic, but generally passive supporters.

Assange reminds me a bit of the obsessed protagonist of Samuel Delany’s sci-fi novel Nova, with sensitive information playing the role in the Wikileaks drama that Illyrion plays in Delany’s work: a resource that can utterly shift the balance of power if it comes into the right hands. Assange sees an utterly corrupt status quo, and wishes to upset it. Projects like Wikileaks may well succeed in doing so. But, if the status quo could speak, it might warn, “Après moi, le déluge.” (And Zhou Enlai is probably still correct to say that it’s “too soon to tell” what the impact of that power shift was.)