Our 2012 Symposium Issue, The Privacy Paradox: Privacy and Its Conflicting Values, is now available online:

Essays

#1 and #2 run together. If spam is the problem, you don’t need to block access to the Web site. However, if you are concerned that students are going to read the petition, [...]]]> In the spirit of the excellent colloquy here about Marvin’s thinking on First Amendment architectures, I bring up this news item: Arizona State University blocked both Web access to, and e-mail from, the change.org Web site. ASU students had begun a petition demanding that the university reduce tuition. The university essentially made three claims as to why it did so (below, in order of increasing stupidity):

1. It was a technical mistake;
2. Change.org was spamming ASU; and
3. ASU needs to “protect the use of our limited and valuable network resources for legitimate academic, research and administrative uses.”

#1 and #2 run together. If spam is the problem, you don’t need to block access to the Web site. However, if you are concerned that students are going to read the petition, and sign it, you do need to block access to the Web site.

For #2, sorry, ASU, this isn’t spam. Spam is unsolicited bulk commercial e-mail. Change.org is, allegedly, sending unsolicited political e-mail. And that’s protected by the First Amendment – see, for example, the Virginia Supreme Court’s analysis of that state’s anti-spam law that covered political messages. Potential political spammers have a sharp disincentive to fill recipient’s inboxes – it’s a sure-fire way to annoy them into opposing your position.

For #3, ASU doesn’t get to determine what academic and research uses are “legitimate.” If they throttle P2P apps, that’s fine. If they limit file sizes for attachments, no problem. But deciding that the message from Change.org is not “legitimate” is classic, and unconstitutional, viewpoint discrimination.

This looks like censorship. I think it’s more likely to be stupidity: someone in ASU’s IT department decided to block these messages as spam, and to filter outbound Web requests to the site contained within those messages. But: with great power over the network comes great responsibility. Well-intentioned constitutional violations are still unlawful. It would also help if ASU’s spokesperson simply admitted the mistake rather than engaging in idiotic justification.

As I mention in Orwell’s Armchair, public actors are increasingly important sources of Internet access. But when ASU and other public universities take on the role of ISP, they need to remember that they are not AOL: their technical decisions are constrained not merely by tech resources, but by our commitment to free speech. Let’s hope the Sun Devils cool off on the filtering…

Cross-posted at Info/Law.

There is an introduction [...]]]> On February 14-16, we will host an online symposium on A Legal Theory for Autonomous Artificial Agents, by Samir Chopra and Laurence White. Given the great discussions at our previous symposiums for Tim Wu’s Master Switch  and Jonathan Zittrain’s Future of the Internet, I’m sure this one will be a treat.  Participants will include Ken Anderson, Ryan Calo, James Grimmelmann, Sonia Katyal, Ian Kerr, Andrea Matwyshyn, Deborah DeMott, Paul Ohm,  Ugo Pagallo, Lawrence Solum, Ramesh Subramanian and Harry Surden.  Chopra will be reading their posts and responding here, too.  I discussed the book with Chopra and Grimmelmann in Brooklyn a few months ago, and I believe the audience found fascinating the many present and future scenarios raised in it.  (If you’re interested in Google’s autonomous cars, drones, robots, or even the annoying little Microsoft paperclip guy, you’ll find something intriguing in the book.)

There is an introduction to the book below the fold.  (Chapter 2 of the book was published in the Illinois Journal of Law, Technology and Policy, and can be found online at SSRN).  We look forward to hosting the discussion!

Social and economic interactions today increasingly feature a new category of being: the artificial agent. It buys and sells goods; determines eligibility for legal entitlements like healthcare benefits; processes applications for visas and credit cards; collects, acquires and processes financial information; trades on stock markets; and so on. We use language inflected with intentions in describing our interactions with an artificial agent, as when we say “the shopping cart program wants to know my shipping address.” This being’s competence at settling into our lives, in taking on our tasks, leads us to attribute knowledge and motivations, and to delegate responsibility, to it. Its abilities, often approximating human ones and sometimes going beyond them, make it the object of fear and gratitude: it might spy on us, or it might relieve us of tedium and boredom.

The advances in the technical sophistication and autonomous functioning of these systems represent a logical continuation of our social adoption of technologies of automation. Agent programs represent just one end of a spectrum of technologies that automate human capacities and abilities, extend our cognitive apparatus, and become modeled enhancements of ourselves. More than ever before, it is coherent to speak of computer programs and hardware systems as agents working on our behalf. The spelling checker that corrects this page as it is written is a lexicographic agent that aids in our writing, as much an agent as the automated trading system of a major Wall Street brokerage, and the PR2 robot, a prototype personal robotic assistant (Markoff 2009). While some delegations of our work to such agents are the oft-promised ones of alleviating tedious labor, others are ethically problematic, as in robots taking on warfare roles (Singer 2009). Yet others enable a richer, wider set of social and economic interconnections in our networked society, especially evident in e-commerce (Papazoglu 2001).

As we increasingly interact with these artificial agents in unsupervised settings, with no human mediators, their seeming autonomy and increasingly sophisticated functionality and behavior, raises legal and philosophical questions. For as the number of interactions mediated by artificial agents increase, as they  become actors in literal, metaphorical and legal senses, it is ever more important to understand, and do justice to, the artificial agent’s role within our networks of social, political and economic relations. What is the standing of these entities in our socio-legal framework? What is the legal status of the commercial transactions they enter into? What legal status should artificial agents have? Should they be mere things, tools, and instrumentalities?  Do they have any rights, duties, obligations? What are the legal strategies to make room for these future residents of our polity and society? The increasing sophistication, use, and social embedding of computerized agents makes the coherent answering of older questions raised by mechanical automation ever more necessary.

Carving out a niche for a new category of legal actor is a task rich with legal and philosophical significance. The history of jurisprudence addressing doctrinal changes in the law suggests legal theorizing to accommodate artificial agents will inevitably find its pragmatic deliberations colored by philosophical musings over the nature and being of these agents. Conversely, the accommodation, within legal doctrines, of the artificial agent, will influence future philosophical theorizing about such agents, for such accommodation will invariably include conceptual and empirical assessments of their capacities and abilities. This interplay between law and philosophy is not new: philosophical debates on personhood, for instance, cannot proceed without an acknowledgement of the legal person, just as legal discussions on tort liability are grounded in a philosophical understanding of responsibility and causation.

This book seeks to advance interdisciplinary legal scholarship in answer to the conundrums posed by this new entity in our midst. Drawing upon both contemporary and classical legal and philosophical analysis, we attempt to develop a prescriptive legal theory to guide our interactions with artificial agents, whether as users or operators entering contracts, acquiring knowledge or causing harm through agents, or as persons to whom agents are capable of causing harm in their own right. We seek to apply and extend existing legal and philosophical theories of agency, knowledge attribution, liability, and personhood, to the many roles artificial agents can be expected to play and the legal challenges they will pose while so doing. We emphasize legal continuity, while seeking to refocus on deep existing questions in legal theory.

The artificial agent is here to stay; our task is to accommodate it in a manner that does justice to our interests and its abilities.

Start-up fever fuels these concerns as new services debut and others grow in importance. For example, a leader at Lenddo, “the first credit scoring service that uses your online social network [...]]]> Social sorting is big business. Bosses and bankers crave “predictive analytics:” ways of deciding who will be the best worker, borrower, or customer. Our economy is less likely to reward someone who “builds a better mousetrap” than it is to fund a startup which will identify those most likely to buy a mousetrap. The critical resource here is data, the fossil fuel of the digital economy. Privacy advocates are digital environmentalists, worried that rapid exploitation of data either violates moral principles or sets in motion destructive processes we only vaguely understand now.*

Start-up fever fuels these concerns as new services debut and others grow in importance. For example, a leader at Lenddo, “the first credit scoring service that uses your online social network to assess credit,” has called for “thousands of engineers [to work] to assess creditworthiness.” We all know how well the “quants” have run Wall Street—but maybe this time will be different. His company aims to mine data derived from digital monitoring of relationships. ITWorld headlined the development: “How Facebook Can Hurt Your Credit Rating”–”It’s time to ditch those deadbeat friends.” It also brought up the disturbing prospect of redlined portions of the “social graph.”

There’s a lot of value in such “news you can use” reporting. However, I think it misses some problematic aspects of a pervasively evaluated and scored digital world. Big data’s fans will always counter that, for every person hurt by surveillance, there’s someone else who is helped by it. Let’s leave aside, for the moment, whether the game of reputation-building is truly zero-sum, and the far more important question of whether these judgments are fair. The data-meisters’ analytics deserve scrutiny on other grounds.

Privacy and Power

First, there’s the power issue. Note that companies like Lenddo and Klout want access to a complete list of your friends, and their financial profiles, but brag that their own algorithms are “proprietary and secret.” If they really believed in the Silicon Valley hype about “transparency” and “openness,” why not reveal them? Or, if they fear someone will game the algorithms, why not release them after one, two, or five years? And if even that is too trying, how about establishing third party entities to audit the process? James B. Rule highlights the unfairness:

This country’s consumer credit reporting industry ascribes to the great majority of adult Americans a three-digit score epitomizing their potential profitability as charge-account customers, credit card users, or mortgage applicants. As in virtually all systems of mass surveillance, credit tracking and scoring enables institutions to make ever-finer distinctions in their treatment of the people they deal with.

But note that American consumers have no remotely comparable monitoring system to help them choose among retailers, products, and services. This is hardly for lack of need. A consumer-friendly tracking system could furnish the same comprehensive, instantaneously available data to buyers that credit reporting provides to lenders and retailers.

All of this would cost money, though consumer savings would likely make up for the public costs. What’s more problematic is that such a system would require manufacturers and sellers to provide crucial data. They will, of course, insist that such information is proprietary—that is, they own it, and they’re not giving it up. The reasons for such resistance are obvious: Better information for consumers spells potential disadvantage for sellers. . . .

The dramatic discrepancies between these two surveillance potentials—one an ultra-sophisticated reality, the other grossly underdeveloped—are by no means imposed by technology. They reflect sponsorship. This country’s lending and retail industries are simply better organized and more resourceful interests than consumers.

When Big Data’s cheerleaders rhapsodize about understanding our social world better than ever, remember that they are often talking about enhanced methods of monitoring and manipulating those too politically weak to demand privacy (or recompense for its invasion).

Nathan Newman has anticipated the problem will confound even notable enforcement actions:

[H]ere’s the big problem with [current FTC] privacy audits. When they were first being discussed, consumer groups like the Electronic Privacy Information Center (EPIC) asked that any audits be made public. The response from the Federal Trade Commission was not encouraging. They told the groups the audits would not be published but “the public may have access to the submissions required pursuant to the order” using tools like the Freedom Of Information Act (FOIA).

[FOIA exempts trade secrets in many cases.] So the company may be using innovative strategies to violate consumer privacy and will demand that the FTC hide those methods from the public by deeming them “trade secrets.” The joke here is that these companies are systematically violating consumer privacy but are demanding secrecy for the regulatory review of those violations.

As I noted in another context: there is one rule of privacy law for the powerful, and quite another for the powerless. For US courts, trade secrecy remains sacred, even as privacy is eroded at every turn.

Hopeful Monsters: Survival of Cyberspace’s Fittest

Reporters tend to worry that people will change their behavior once the full negative impact of “deadbeat” friends becomes clear. I don’t share that worry presently, mainly because monitoring now is so pervasive that it would be a herculean mental feat simply to keep track of all the ways one could misbehave in the eyes of some digital sensor (or censor). Rating tools may also be so opaque that gaming them seems to be a Sisyphean task. But I do worry that we won’t adequately appreciate the ways in which these services make the world more congenial for certain personality types and less so for others. For example, a person who automatically cuts off contact with “friends in need” may get cheaper credit and more opportunities if Lenddo becomes very successful. Quantified selves who tend to quickly conform to such a gamified social life will also “score.” I’ve already heard stories of Twitterati churning through followers to maximize “Klout.” Both reinforce troubling trends in the US economy’s reward structure.

Of course, we all have such tendencies in us; it’s not as if there’s a certain calculative ideal-type out there ready to take advantage of the new social gamescape of reputation enhancement. Sadly, even that complexity may ultimately be flattened by a world of constant monitoring. Mark Zuckerberg memorably said that:

You have one identity…The days of you having a different image for your work friends or co-workers and for the other people you know are probably coming to an end pretty quickly… Having two identities for yourself is an example of a lack of integrity.

In response, Aaron Bady has drawn on the thought of W.E.B. Dubois to defend “the multitudes of identities we each contain:”

Why is it that people want to control their privacy? It isn’t so much that people want to “hav[e] a different image for your work friends or co-workers,” as [Zuck] sort of innocuously puts it; it’s not an issue of choice for people who need to have a different image for their boss than the one they have in real life. The less the people who sign your paycheck know about you, after all, the less they know that you’re not simply a simple worker-drone toiling away in their sugar fields, and that can be an urgent thing in a time where everyone who works for someone else could be replaced at any time.

But even the less dire firewalls we try to build in our lives are fundamentally about asserting our ability to choose; we hide things from our friends and family to the extent we fear they’ll disapprove and make that disapproval meaningful by intervening. We compartmentalize not because we’re split between different notions of ourself, but because the multitudes of identities we each contain bump up against people’s expectations that we each be a particular way.

When individuals resist the pervasive monitoring of services like Klout or Lenddo (or more traditional data brokers and credit bureaus), it’s not necessarily because they have something to hide. Rather, it’s because they already feel amply manipulated and controlled by existing constellations of knowledge and power. To paraphrase Tarleton Gillespie, “We don’t have a clear sense of how to talk about the politics of th[e] algorithm[s]” now vying to credit or discredit our digital selves as powerfully and profitably as entities like credit bureaus and DHS evaluate our physical selves. Until norms of reciprocal transparency render them as legible as they’d like to make us, it is wise to keep a cautious distance.

*To push the metaphor one more step: Scott Peppet has identified unraveling dynamics that are probably the digital equivalent to sudden methane release from permafrost.

Image Credit: Seanrnicholson.

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.

The NY Times now has an article out about the challenges in crafting social media policies for teacher-student interaction, noting that “stricter guidelines are meeting resistance from some teachers because of the increasing importance [...]]]> Increasingly, states and school districts are struggling over how to deal with teachers who communicate with students online via social network websites.  One foolish way to address the issue is via strict bans, such as a law passed in Missouri earlier this year that attempted to ban teachers from friending students on social network websites.  Such laws are likely violations of the First Amendment right to freedom of speech and association, and I blogged at the Huffington Post that the law was unconstitutional.  Soon thereafter, a court quickly struck down the law.

The NY Times now has an article out about the challenges in crafting social media policies for teacher-student interaction, noting that “stricter guidelines are meeting resistance from some teachers because of the increasing importance of technology as a teaching tool and of using social media to engage with students.”

There are a number of considerations that schools should think about when crafting a social media policy:

1. The policy should account for the fact that there are legitimate reasons for students and teachers to communicate online.  A teacher might be related to a student, and certainly a law or policy shouldn’t ban parents from friending their children.  Or a teacher might be a godparent to a child or a close family friend or related in some way.

2. One middle-ground approach is to require parental consent whenever a teacher wants to friend a minor student online.  This greater transparency will address the cases where teachers might have inappropriate communication with minors.

3. Clear guidelines about appropriate teacher expression should be set forth, so teachers know what things will be inappropriate to say.  Teachers need to learn about their legal obligations of confidentiality, as well as avoiding invasions of privacy, defamation, harassment, threats, and other problematic forms of speech.

4. When teachers use social network sites in the classroom — or otherwise use blogs and online posting as a teaching device — they should exercise great care, especially when requiring minors to express themselves publicly online.  I’ve seen some class blogs, where students are asked to post reactions to reading or write online journals.  Making students post their views and opinions to the public, especially at such a young age, strikes me as a problematic practice.  The Children’s Online Privacy Protection Act (COPPA) would protect minors under the age of 13, but teachers should be sensitive to minors 13 and older too.  No minor student should be required to post any personal information or class assignment on a publicly-accessible website without the student’s consent and the parent’s consent.  And all websites that involve student personal information have a privacy policy.

5. Education is key.  I’ve read about a lot of cases involving improper social media use by educators, and they often stem from a lack of awareness.  Teachers think they can say nearly anything and it will be protected by the First Amendment.  The First Amendment law actually gives schools a lot of leeway in disciplining educators for what they say, and educators can also be sued by those whom they write about.  Educators often think that if they post something anonymously, then it is okay or they can get away with it — but anonymity online is often a mirage, and comments can readily be traced back to the speaker.  And educators often set the privacy settings on social media sites incorrectly.  They don’t spend enough time learning the ins and outs of the privacy settings.  These are actually quite tricky — even rocket scientists have trouble figuring them out.

Flash mobs have been eliciting wide-eyed excitement for the better part of the past decade now. They were playful and glaringly pointless in their earliest manifestations. Mobbers back then were content with the playful performance art of the thing. Early proponents, at the same time, breathlessly lauded the flash mob “movement.”

MGK leads a movement (Youtube)

Today, the flash mob has matured into something much more complex than these early proponents prophesied. For one, they involve unsupported and disaffected young people of color in cities on [...]]]>

Like Professor Zick, I am grateful for the invitation to share my view of the world with Concurring Opinions. I’d like to pick up where his post on strange expressive acts left off and, along the way, perhaps answer his question.

Flash mobs have been eliciting wide-eyed excitement for the better part of the past decade now. They were playful and glaringly pointless in their earliest manifestations. Mobbers back then were content with the playful performance art of the thing. Early proponents, at the same time, breathlessly lauded the flash mob “movement.”

MGK leads a movement (Youtube)

Today, the flash mob has matured into something much more complex than these early proponents prophesied. For one, they involve unsupported and disaffected young people of color in cities on the one hand and, on the other, anxious and unprepared law enforcement officials. A fateful mix.

In North London in early August, mobile online social networking and messaging probably helped outrage over the police shooting of a young black man morph into misanthropic madness.  Race-inflected flash mob mischief hit the U.S. this summer, too. Most major metropolitan newspapers and cable news channels this summer have run stories about young black people across the country using their idle time and fleet thumbs to organize shoplifting, beatings, and general indiscipline. This is not the first time the U.S. has seen the flash mob or something like it. (Remember the 2000 recount in Florida?) But the demographic and commercial politics of these events in particular ought to raise eyebrows.

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?

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.

Naturally, with all of this socializing comes the far darker side of human relationships.  Social network sites sponsor threats, harassment, and hatred, leading to important, though always outmatched, voluntary efforts to address destructive behaviors.  Given the scale of these sites, the Chief Safety Officers of those social network sites need help identifying malicious activity that [...]]]> Facebook and other social network sites offer much to celebrate.  They have given new life to long-standing relationships and cemented new ones while providing innovative means to share ideas and engage with different communities.  Offline relationships are extended online.  Student groups meet in classrooms as well as on YouTube channels.  Employees talk in the office and online (sometimes even to critique their bosses with co-workers, see Kashmir Hill‘s always- thought-provoking commentary).

Naturally, with all of this socializing comes the far darker side of human relationships.  Social network sites sponsor threats, harassment, and hatred, leading to important, though always outmatched, voluntary efforts to address destructive behaviors.  Given the scale of these sites, the Chief Safety Officers of those social network sites need help identifying malicious activity that their Terms of Service prohibit.  This summer, Facebook and the police learned about another disturbing case: a Chester County man tried to use Facebook to hire a hit man to kill a woman who accused him of rape.  In July, the woman called the police after seeing a posting on the man’s Facebook page that offered $500 for “a girls head.”  The man later updated the posting, saying that he “needed the girl knocked off right now.”  As the Huffington Post recently reported, the man pleaded guilty to rape, criminal solicitation of murder, and other counts.

According to The New York Times, most contributors are male.  More specifically, “less than 15 percent of its hundreds of thousands of contributors are female.”  This, in turn, has skewed the gender [...]]]> Time magazine recently did a true-to-form story on Wikipedia, where guest editors (and our very own featured author) Jonathan Zittrain (see here too), Robert McHenry, Benjamin Mako Hill, and Mike Schroepfer assisted in writing/editing/re-writing a feature entitled Wikipedia’s “Ten Years of Inaccuracy and Remarkable Detail.” As the piece explained, Wikipedia just celebrated its 10th birthday.  The site has 17 million entries in more than 250 languages, quite a feat given that Encyclopedia Brittanica only has 120,000 and only in English.  The Time wiki-like piece notes that Wikipedia has a “diverse, international body of contributors.”

According to The New York Times, most contributors are male.  More specifically, “less than 15 percent of its hundreds of thousands of contributors are female.”  This, in turn, has skewed the gender disparity of topics and emphasis.  Wikimedia’s executive director Sue Gardner explains that topics favored by girls such as friendship bracelets can seem short when compared with lengthy articles on something boys typically like such as toy soldiers or baseball cards.  The New York Times notes that a category with five Mexican feminist writers might not seem so impressive when compared with 45 articles on characters in “The Simpsons.”

Why is this so?  Joseph Reagle, a fellow at the Berkman Center for Internet and Society at Harvard and author of “Good Faith Collaboration: The Culture of Wikipedia,” explains that Wikipedia’s early contributors shared “many characteristics with the hard-driving hacker crowd,” including an ideology that “resists any efforts to impose rules or even goals like diversity, as well as a culture that may discourage women.”  He notes that adopting an ideology of openess means being “open to very difficult, high-conflict people, even misogynists.”  The demographics of Wikipedia’s editors may also stem, in part, from the tendency of women to be “less willing to assert their opinions in public.”

How Wikipedia is now, and has been, responding is worth noting.  Sue Gardner told the Times that she hopes to raise the share of women contributors through subtle persuasion and outreach to welcome newcomers to Wikipedia.  Dave Hoffman and Salil Mehra’s terrific piece Wikitruth Through Wikiorder demonstrates that the site has already fostered efforts to create a more inclusive environment.  As Hoffman and Mehra explain, Wikipedia has an Arbitration Committee whose volunteer members rule on disputes and set forth concrete rules on how users should behave.  The Arbitration Committee has sanctioned users who make homophobic, ethnic, racial or gendered attacks or who stalk and harass others.  According to Hoffman and Mehra’s empirical study, in cases when either impersonation or anti-social conduct like hateful attacks occur, the Administrative Committee will ban the user in 21% of cases.  Wikipedia’s more than 1,500 administrators, in turn, enforce those rules.  Wikipedia also permits users to report impolite, uncivil, or other difficult communications with editors in its Wikiquette alerts notice board.