Facebook Frenzy: Faking Friendships?

Thoreau was famously skeptical of communications technology, wryly observing that when the telegraph connected Maine and Texas, citizens of each state could find they have little to say to one another. Shannon Vallor, Professor of Philosophy at Santa Clara University, struck a similarly cautious note at a fascinating discussion of the ethics of social networking at Stanford. Mining the rich tradition of virtue theory in moral philosophy, Vallor observed that social networking can both undermine and reinforce the persistent dispositions of character that promote human flourishing. Here are some similar observations of Vallor's from another panel:

[W]hat impact is social networking technology having on the ways that people build and sustain close interpersonal relationship and, in particular, the communicative virtues that help such relationships to flourish? I will identify five communicative virtues that I believe warrant careful reflection in connection with social networking technology.

First is patience. Patience is, without a doubt, one of the most important virtues for sustaining close relationships. It develops through communicative activities such as listening. For example, listening to a friend tell a story or recount a lengthy anecdote without jumping in and finishing the story oneself or interrupting with hey, that reminds me of this thing that happened to me yesterday. Patience, once it becomes not just a momentary indulgence of the other, but an enduring part of one’s own character, that is, a virtue, allows one’s relationships with others to manifest deeper, mutual understanding, greater and more lasting commitments and a feeling on the part of others that you are willing to connect with them on their terms and not just yours; that your interest in them does not end with their ability to keep you constantly amused or fascinated.

Yet the style of communication favored by digital natives and fostered by social networking sites like Facebook and MySpace, privileges brevity and directness. And, thus, we must ask whether, and in what ways, such technologies can also encourage and reward patience as a virtue.

Second, fidelity. Fidelity is a crucial part of any enduring relationship. It develops through the communicative practice of openly expressing commitments to another and honoring them and, in that way, honoring the uniqueness and the value of the relationship itself. Expressions of fidelity range from the simple commitment to go to a movie on a Saturday night with a friend, even if a more exciting opportunity later presents itself, to the lifelong commitment expressed in a vow of marriage. The expression of fidelity shows that you do not regard the other as replaceable, that even if someone else comes along who can occupy the same role and deliver the same social benefits, this could not, for you, be a substitute for the original bond.

Yet we must ask whether the focus on friend collecting, on many social networking sites, by stressing a purely quantitative measure of friendship, may undermine the virtue of fidelity by providing a framework in which friends are each assigned identical unit values and in which one’s sociality is measured by the sum total of those units, rather than the irreplaceable value of any single relationship.

Perhaps symptomatic of my own impatience, I'll leave Vallor's discussions of honesty, perseverance, and tolerance for another time. I would like at some point to ground my own reservations about the Blackberry in a philosophical language as rich as hers.

PS: For those interested in the philosophy of technology, the new journal Studies in Ethics, Law, and Technology looks very interesting.

Posted by Frank Pasquale at 12:00 AM | Comments (0) | TrackBack

Debate on the Future of the Internet

I think Deven's advice is great, but for those who want to sample Zittrain's new book (The Future of the Internet and How to Stop It) before buying it, it's excerpted in the Boston Review this month. (There's also an outline of its ideas in this Harvard Law Review article.) It's a very thoughtful analysis of some of the most difficult issues affecting internet policy. I will have more to say in future posts, but I just wanted to highlight this work, and the all-star respondents who comment on it in the same issue.

One of the biggest problems that Zittrain spots is that "bad code is now a business:"

So long as spam remains profitable, [many crimes] will persist. . . [including] viruses that compromise PCs to create large zombie “botnets” open to later instructions. Such instructions have included directing PCs to become their own e-mail servers, sending spam by the thousands or millions to e-mail addresses harvested from the hard disk of the machines themselves or gleaned from Internet searches, with the entire process typically proceeding behind the back of the PCs’ owners.

Botnets can also be used to launch coordinated attacks on a particular Internet endpoint. For example, a criminal can attack an Internet gambling Web site and then extort payment to make the attacks stop. The going rate for a botnet to launch such an attack is reputed to be about $50,000 per day.

What to do? I'll just append a very brief excerpt of the Boston Review piece below the fold.

After considering the shortcomings of "appliancization" of personal computers (i.e., making them as tamper-proof as TiVos and cellphones), Zittrain states:

We need a strategy that addresses the emerging security troubles of today’s Internet and PCs without killing their openness to innovation. This is easier said than done, because our familiar legal tools are not particularly attuned to maintaining generativity. A simple regulatory intervention—say, banning the creation or distribution of deceptive or harmful code—will not work because it is hard to track the identities of sophisticated wrongdoers, and, even if found, many may not be in cooperative jurisdictions. Moreover, such intervention may have a badly chilling effect: much of the good code we have seen has come from unaccredited people sharing what they have made for fun, collaborating in ways that would make businesslike regulation of their activities burdensome for them. They might be dissuaded from sharing at all. . . .

We can find a balance between needed change and undue restriction if we think about how to move generative approaches and solutions that work at one “layer” of the Internet—content, code, or technical—to another. Consider Wikipedia, the free encyclopedia whose content—the entries and their modifications—is fully generated by the Web community. . . .

The effectiveness of the social layer in Web successes points to two approaches that might save the generative spirit of the Net, or at least keep it alive for another interval. The first is to reconfigure and strengthen the Net’s experimentalist architecture to make it fit better with the vast expansion in the number and types of users. The second is to develop new tools and practices that will enable relevant people and institutions to help secure the Net themselves instead of waiting for someone else to do it.

Generative PCs with Easy Reversion. Wikis are designed so that anyone can edit them. This creates a genuine and ongoing risk of bad edits, through either incompetence or malice. The damage that can be done, however, is minimized by the wiki technology, because it allows bad changes to be quickly reverted. All previous versions of a page are kept, and a few clicks by another user can restore a page to the way it was before later changes were made. So long as there are more users (and automated tools they create) detecting and reverting vandalism than there are users vandalizing, the community wins. (Truly, the price of freedom is eternal vigilance.) Our PCs can be similarly equipped.

****

Building on . . . ideas about measurement and code assessment, Harvard University’s Berkman Center and the Oxford Internet Institute—multidisciplinary academic enterprises dedicated to charting the future of the Net and improving it—have begun a project called StopBadware, designed to assist rank-and-file Internet users in identifying and avoiding bad code. The idea is not to replicate the work of security vendors like Symantec and McAfee, which for a fee seek to bail new viruses out of our PCs faster than they pour in. Rather, these academic groups are developing a common technical and institutional framework that enables users to devote some bandwidth and processing power for better measurement of the effect of new code.

I'll try to summarize and respond to Zittrain's arguments later this week. But for now I offer these excerpts as a taste of the challenging ideas now on offer in his new book.

Posted by Frank Pasquale at 04:12 PM | Comments (1) | TrackBack

Getting a Tax Refund? Buy A Book – Zittrain’s The Future of the Internet and How to Stop It

Jonathan Zittrain’s new book, The Future of the Internet and How to Stop It, was released today. There is much to recommend in the book and too much to address well in a blog post. Still, having finished it, I can say that it offers many insights.

In short, as Zittrain explains in three principles: “Our information technology ecosystem functions best with generative technology at its core.” “Generativity instigates both within and beyond the technological layers of the information technology ecosystem.” “Proponents of generative systems ignore the drawbacks attendant to generativity’s success at their peril.”

The presentation of the history of generative systems is worth the candle alone. There Prof. Zittrain tracks not only the rise of the Internet as we know it, but cautions us with reminders of early battles in the world of IBM mainframes and AT&T telephones. By framing the issue so that one sees how easily the world of “tethered appliances” could have been our world, Zittrain offers a glimpse of how we could inhabit such a world.

The explanation of the generative pattern captures the way small, powerful, and potentially disruptive technologies allow for great and rapid changes with large upsides, but by their nature foster the possibility of pernicious behaviors when adoption spreads to a general population. When that happens several areas of concern such as cybersecurity, spam, privacy, net neutrality, intellectual property, and more impact the generative internet. (For those unfamiliar with the idea, generative technologies exhibit five characteristics leverage, adaptability, ease of mastery, accessibility, and transferability (p. 71-73); for a related model of understanding some of these ideas I suggest Brett Frischmann’s An Economic Theory of Infrastructure and Commons Management).

The discussions of all these areas alone makes the book worth a read. In addition, it appears that Prof. Zittrain picks up a theme I have started to explore (so I may be projecting here) that may surprise some: the law is not necessarily useful or the best way to address these problems. Rather, just as the Internet grew from community efforts, it may best be governed by such efforts. To be clear Zittrain is no fool. He knows that states, pan-state groups, and large trade or interest groups have roles to play. But he makes a compelling case that just as the Internet grew from individuals and small groups who “identify[ed] and belong[ed]” to the Net, today we need to re-create the Internet community so that people “identify and belong” to it such that they tend to it and allow it to continue to grow. For Zittrain such a shift will harness the efforts of numerous good actors to thwart the bad actors while keeping open room for the unpredicted, innovative, and in a word generative Internet that has provided so much to us thus far.

There is more to say on this one, but for now I'd say buy the book.

cross-posted at Madisonian

Posted by Deven Desai at 02:05 PM | Comments (1) | TrackBack

Brazil: Bye, Bye Wordpress

Apparently a Brazilian court has ordered all ISPs to block WordPress because one site on the blogging platform may have defamed a noted attorney there. I can't read Portuguese, so I can't give the full background of the story, but my contact Marcel Leonardi thinks the case will cause serious problems for bloggers in Brazil. This strikes me as the mother of all overinclusive (and ineffective) remedies, but as Jonathan Zittrain reminds us, a totally untrammeled internet is likely to provoke many blunt responses.

UPDATE: Here is Leonardi's take:

The story does not mention the address of the specific blog . . . but my contacts have already found out the problem - the blog was created by some unknown party and it was offensive to . . . one of the most famous . . . .attorneys in Brazil. . . . What saddens me the most is that some people . . . think this is an acceptable solution for defamation on the Internet - muting millions of voices because of one bad apple.

Posted by Frank Pasquale at 07:28 PM | Comments (1) | TrackBack

Dilemmas of the Cheap Aesthetic

I've frequently taken aim at "expensive tastes" on this blog. It seems like the corollary of that critique would be praise for inexpensive tastes, or a cheap aesthetic. This may well be the cheapest music video ever made (American Princes, Never Grow Old):

Here's the band's (promoter's) description of the video on YouTube:

Take a moment and think back to the younger years. All you have is a pen, notebook paper, and an imagination. No distractions to interrupt you, just you and the music in your head. How would you envision your new favorite rock band? American Princes captures this innocent moment with their music video, Never Grow Old. It will effortlessly and entertainingly take you back to simplicity . . . . It's new, fresh, ingenious, and original.

The simulations here are not merely simple (unlike, say, Justice's graphics-dominated video for DVNO), but are quite a lot less resource-intensive than, say, real drums, guitars, stages, etc. Never Grow Old reminded me of Albert C. Lin's article Virtual Consumption: A Second Life for Earth (2008 BYU L. Rev. 47), which provides a creative response to the Malthusian dilemmas I was discussing yesterday.

Lin cautiously concludes that a shift from real to virtual consumption could relieve pressures on natural resources:

Whether virtual consumption will be better for the environment, or for society at large, remains to be determined. On the one hand, virtual worlds may serve merely as enablers of real consumption. If so, the environmental promise of virtual consumption may be only an illusion. On the other hand, virtual worlds may function as a bridge to a society less dependent on material consumption. Such an outcome would benefit the environment and finally provide a curb to the rising tide of consumption.

But Lin has some fascinating thoughts on whether engagement with a virtual world may lead individuals to care less and less about real ones:

Obviously, Second Life and other virtual worlds differ from Nozick's experience machine (and even more dystopic visions such as that found in The Matrix films) in various ways, not the least of which is that they provide opportunities to interact with other human beings. However, one's ability in Second Life to assume a selected persona and a chosen avatar, combined with the ability to have virtual experiences that simulate real ones, raises serious questions about the moral suitability of these activities.

Viewed in this light, the fact that many Internet users feel as strongly about their online communities as they do about their real communities is both impressive and troubling. Granted, virtual worlds offer far more excitement, with increasingly powerful graphic capabilities, than the video games of yesteryear. The growing attraction of virtual worlds nevertheless may be as much a commentary on the quality of life in the real world as a testament to the experiential value of virtual worlds. As more people establish presences in the virtual world, the danger is that these virtual world users will “tune out” the real world, give it less value, and view its problems as increasingly irrelevant. Technology has had a tendency to foster social isolation by privatizing how we get information, how we do things, and how we entertain ourselves; virtual worlds may well exacerbate that isolation.

Fortunately, the aesthetic valorization of the cheap (or ugly) may not be as dangerous as the romance of the virtual. Liking the cheap (be it real estate, food, or art) can be a training in satisfaction; virtual reality is more bivalent, both compensating for a world that falls short of expectations and subtly making those expectations grander.

Posted by Frank Pasquale at 07:47 PM | Comments (0) | TrackBack

Computers, Freedom, and Privacy Conference

As a member of the Program Committee, I just wanted to post this announcement for CFP. This has been a great conference and I'm sure this year's will be a terrific event. Note that the deadline for Panel, Tutorial, and Speaker proposals is March 21, 2008.

COMPUTERS, FREEDOM, AND PRIVACY: TECHNOLOGY POLICY '08
18th Annual CFP conference
May 20-23, 2008
Omni Hotel
New Haven, CT

CALL FOR PROPOSALS

This election year will be the first to address US technology policy in the information age as part of our national debate. Candidates have put forth positions about technology policy and have recognized that it has its own set of economic, political, and social concerns. In the areas of privacy, intellectual property, cybersecurity, telecommunications, and freedom of speech, an increasing number of issues once confined to experts now penetrate public conversation. Our decisions about technology policy are being made at a time when the architectures of our information and communication technologies are still being built. Debate about these issues needs to be better-informed in order for us to make policy choices in the public interest.

Open participation is invited for proposals on panels, tutorials, speaker suggestions, and birds of a feather sessions through the CFP: Technology Policy '08 submission page. More details below.

This year, the 18th annual Computers, Freedom, and Privacy conference will focus on what constitutes technology policy. CFP: Technology Policy '08 is an opportunity to help shape public debate on those issues being made into laws and regulations and those technological infrastructures being developed. The direction of our technology policy impacts the choices we make about our national defense, our civil liberties during wartime, the future of American education, our national healthcare systems, and many other realms of policy discussed more prominently on the election trail. Policies ranging from data mining and wiretapping, to file-sharing and open access, and e-voting to electronic medical records will be addressed by expert panels of technologists, policymakers, business leaders, and advocates.

Suggested topics for discussion include:

* Information Privacy
* Anonymity Online
* Government Transparency
* Voting Technology
* Online Campaigning
* Social Networks
* Citizen Journalism
* Cybercrime & Cyberterrorism
* Digital Education
* Copyright and Fair Use
* Patent Reform
* Open Access
* P2P Networks
* Information Policy and Free Trade
* Media Concentration
* Genes & Bioethics
* Electronic Medical Records
* Web Accessibility
* Open Standards
* Network Neutrality
* High-Speed Internet Access Policy
* Freedom of Information
* Technology Policy Administration

Submission Deadlines:
Panel, Tutorial, and Speaker proposals: March 21, 2008.
Birds of a Feather Session (BoFs) proposals: April 21, 2008.

Panel, Tutorial, and Speaker proposals accepted by the Program Committee will be notified by April 7, 2008.

Registration available online here.

Posted by Frank Pasquale at 11:09 AM | Comments (1) | TrackBack

Facebook Banishment and Due Process

Recently, I was talking with David Lat, author of the blog Above the Law, and he was complaining about being banished from Facebook. David was an active user of Facebook, and he suddenly and inexplicably found himself banned from the site. Facebook didn't supply him with any reason.

I found the issue quite intriguing, and David said I could blog about it. In particular, what makes this issue of interest to me is how it applies more generally to Web 2.0 applications. With Web 2.0, people invest a lot of time creating profiles, uploading information, and so on. And they start to depend upon these applications in their lives.

David also said he has a lot of important information on his Facebook profile. He uses it as a way to communicate with people, and he uses it to help him gather information for use in his blogging. So being kicked off Facebook is a big deal to David. It can impact his job. It can also impact his friendships and professional relationships. For example, David told me he received emails from several friends who wondered where he had gone. They thought David might be ignoring them or might no longer be their "friend" on Facebook.

As more of our lives become dependent on Web 2.0 technologies, should we have some sort of rights or consumer protection? Is Facebook the digital equivalent to the company town?

David checked Facebook's website, which has a FAQ about disabled accounts. Facebook states:

Your account was disabled because you violated Facebook’s Terms of Use, to which you agreed when you first registered for an account on the site. Accounts can either be disabled for repeat offenses or for one, particularly egregious violation.

Facebook does not allow users to register with fake names, to impersonate any person or entity, or to falsely state or otherwise misrepresent themselves or their affiliations.

We do not allow users to send unsolicited or harassing messages to people they don’t know, and we remove posts that advertise a product, service, website, or opportunity.

Our Code of Conduct outlines the types of content we do not allow on the site. This includes any obscene, pornographic, or sexually explicit photos, as well as any photos that depict graphic violence. We also remove content, photo or written, that threatens, intimidates, harasses, or brings unwanted attention or embarrassment to an individual or group of people.

David insisted that he didn't do any of the things above. Can he see the allegedly offending content that got him banned? Facebook's answer in the FAQ comes from the pen of Franz Kafka:

Unfortunately, for technical and security reasons, Facebook cannot provide you with a description or copy of the removed content.

One blogger writes :

Facebook is shutting down accounts of users who are exhibiting any behavior it finds remotely suspicious. As paradoxical as it sounds, "suspicious" often means just using the site too much! Sometimes they warn people and give them the chance to change their behavior, and sometimes the account termination is sudden and permanent. Most of the time the disabled accounts will be turned back on, whether automatically after a cool-down period, or after prostrating yourself to the FB authorities. But sometimes they'll lock it up and throw away the key.

Facebook remains intentionally vague about what "bad behavior" looks like, and so it's no wonder that people get confused, angry or despondent when they get the ACCOUNT DISABLED message.

Apparently, you can email Facebook to "appeal" being kicked off, but there are no guarantees that you'll be given any sort of reason, or hearing, or fair adjudication process. For some banned users, Facebook will inform them of their crime. David said he emailed Facebook and that he only received an email confirming receipt of his query. Since then, he hasn't heard anything more from Facebook.

But Facebook doesn't have any obligation to tell David anything. Facebook's Terms of Use provide:

The Company may terminate your membership, delete your profile and any content or information that you have posted on the Site or through any Platform Application and/or prohibit you from using or accessing the Service or the Site or any Platform Application (or any portion, aspect or feature of the Service or the Site or any Platform Application) for any reason, or no reason, at any time in its sole discretion, with or without notice, including if it believes that you are under 13, or under 18 and not in high school or college.

In other words, you exist on Facebook at the whim of Facebook. The Facebook dieties can zap your existence for reasons even more frivolous than those of the Greek gods. Facebook can banish you because you're wearing a blue T-shirt in your photo, or because it selected you at random, or because you named your blog Above the Law rather than Below the Law.

On the one hand, this rule seems uncontroversial. After all, it is Facebook's website. They own their site, and they have the right to say who gets to use it and who doesn't.

But on the other hand, people put a lot of labor and work into their profiles on the site. It takes time and effort to build a network of friends, to upload data, to write and create one's profile. Locking people out of this seizes all their work from them. It's like your employer locking you out of your office and not letting you take your things. Perhaps at the very least banished people should be able to reclaim the content of their profiles. But what about all their "friends" on the network? People spend a lot of time building connections, and they can't readily transplant their entire network of friends elsewhere.

Suppose Facebook didn't have any kind of system for appeal when a person got banished. Should the law force it to have some kind of appeal system? One might argue that perhaps the market will work it out -- if people want an appeal system, then they'll choose the social network website or Web 2.0 application that has one. But in many contexts (though not all contexts) people rarely think about the procedures companies have for when things go wrong. This is often not a consideration in making a choice, so it might not generate enough competition in this regard.

As more people use Web 2.0 applications, they are increasingly encouraged to invest an incredible amount of time and effort in them. Facebook wants and encourages people to put up information, to build one's network, and so on. Given people's investment in these applications, should they be granted any kind of rights or protections in using them?

UPDATE: David Lat finally heard back from Facebook. He was banished because he "posted parts of a user's profile to another website, which is a violation of Facebook's Terms of Use." Facebook reactivated David's account, so the story has a happy ending. All's well with the world.

Posted by Daniel J. Solove at 12:55 AM | Comments (15) | TrackBack

PainStation: A Clockwork Lemon?

I've previously covered technological and legal responses to the ever-increasing cell phone din. Now some inventive designers are imagining new scenarios for noise control. For example, Social Mobile 5 (SoMo5) "launches sound bombs into other people's annoying conversations." Authorities may outfit repeat offenders with SoMo1, which "delivers an electric shock whose intensity varies depending on how loudly the person at the other end of the line is speaking." (Be sure to check out the online video. I wonder if they'll submit it to future rulemakings on the issue?)

When I saw these darkly fanciful ideas on display at the Museum of Modern Art's show Design and the Elastic Mind, I immediately connected them to another part of the exhibit: the PainStation, which would raise the stakes of videogaming by making players' left hands suffer "heat, electric shocks, or a quick whipping" after mistakes.

These ideas reminded me of a great Dan Burk article title: A Clockwork Lemon. I doubt they'll be built, but they subversively suggest the way individuals may move from reluctantly submitting to technologies of control to expecting them. As Julian Dibbell noted in his book on Chinese "gold farmers" (individuals who perform repetitive tasks in online games in order to sell game points to wealthier purchasers), some of the gold farmers would relax after 84-hour weeks of game playing by . . . playing more games.

I suppose on some libertarian angle we should celebrate this merger of freedom and necessity in the future. The glittering, perfectly designed interfaces at MOMA suggest as much. But the occasional project highlighted the darker side of technologies of control, and the "future farms" that the spontaneous order of the market will inspire. I'll describe those more in a bit.

Photo Credit: wallyg, photo of Umberto Boccioni's Unique Forms of Continuity in Space.

Posted by Frank Pasquale at 02:01 PM | Comments (2) | TrackBack

The Wikileaks Injunction Case

Since it involves a blend of civil procedure, internet law, and copyright -- i.e., my entire teaching package -- I really have no excuse for not posting on the Wikileaks injunction matter. For those who have not been following it, a Swiss bank with a branch in the Cayman Islands, Bank Julius Baer ("BJB"), filed suit against the website Wikileaks.org in federal court in California and obtained a pair of emergency orders essentially shutting the domain name down. Wikileaks is a user-edited website, much like Wikipedia, but where the purpose is not to post encyclopedia entries, but rather leaked documents from governments and private entities. BJB argued as a basis for the orders that someone, allegedly a former employee, posted stolen documents revealing confidential aspects of BJB's operations.

The orders require the domain name registrar, Dynadot, to point the wikileaks.org domain name to an empty page. This doesn't shut down the site, exactly, it just makes it harder to find. It's like an order to a telephone company ordering a vanity 1-800 number like 1-800-BBOYDEN disconnected. Sure, you can still reach me on my cell and work numbers, but you'll have to go look those up and most people won't bother. (Note: I don't actually have a 1-800 number -- it's a hypothetical.) The "Order Granting Permanent[!] Injunction" and "Amended TRO and Order to Show Cause re Preliminary Injunction," both dated Feb. 15, are available online, as is the entire court docket, via Justia. (See Michael Froomkin's discussion of why the relationship between the two orders is confusing.)

There's lots of focus on the broader question of whether domain-name-disabling is a prior restraint barred by the First Amendment. I want to focus on several lesser but still interesting nuggets: the overlooked privacy interests at stake, the role of the DMCA, the breadth of TROs in the internet age, and "futility" arguments against anti-leak injunctions based on internet distribution.

1. The Privacy Component. BJB's moving papers are a little sketchy, but BJB claims that at least some of the records in question contain client information such as names and account numbers. Whether or not yanking the domain name is justifiable, a TRO or preliminary injunction ordering immediate removal of those documents, allegedly stolen from the bank, should not raise First Amendment concerns. It's unclear, however, how much of the records actually contain such client data, and how much contain merely embarrassing internal bank operation details, where the justification for removal would be subject to trade secret law. The California Supreme Court's decision in DVD CCA v. Bunner indicates that it might be difficult to establish, in a case like this, that "publication of these trade secrets on the Internet has not destroyed their trade secret status," a necessary element of a trade secret claim for an injunction against someone other than the original thief.

2. There's a Lot of Confusion Over the DMCA Notice-and-Takedown Procedures Here. The Wikileak orders were preceded by a period of correspondence between BJB's lawyers in California and Wikileaks concerning Wikileaks's contact address for DMCA takedown notices. The correspondence is odd on both sides. First, there is BJB counsel's insistence that Wikileaks identify the contact address for DMCA takedown notices, which "under US federal copyright law, it is your legal obligation to provide." Wrong. This is something my students get confused about all the time. Section 512, which contains the DMCA designated agent provision, does not obligate ISPs to do anything. It provides an immunity from contributory infringement liability, and conditions that immunity on jumping through various hoops -- one of which is providing the contact address. So, BJB's lawyers should have been saying, "if you want to keep your immunity, you'd better send me that address now."

Wikileaks looks confused too. They have a DMCA takedown policy on their site, but it does not actually provide the contact details for Wikileaks' agent for receiving a DMCA notification. Rather, it provides an email address -- in January, legal@wikileaks.org -- where you can email to ASK for the contact information. Wikileaks says that if you do that, "[y]ou will then be provided with contact details for the Wikileaks Agent."

That doesn't appear to me to comply with Section 512. 17 U.S.C. s 512(c)(2) requires that, in order to preserve its immunity for information posted by a third party on the ISP's servers, the ISP must "mak[e] available through its service, including on its website in a location accessible to the public, and by providing to the Copyright Office, substantially the following information: (A) the name, address, phone number, and electronic mail address of the agent."

Wikileaks might have a claim that nevertheless it qualifies for the DMCA safe harbor IF emailing legal@wikileaks.org resulted in an immediate response containing the contact information. But that's not what Wikileaks does -- take a look at the correspondence. (There's also the problem that it hasn't sent anything to the Copyright Office.) Instead, Wikileaks wrote back to BJB's lawyers and asked for all sorts of details about their claims before they would send the contact information. Wrong again. The details about the claim are supposed to be in the takedown notice -- which BJB CAN'T SEND until it has the contact information. Wikileaks' procedure reminds me of the classic Dilbert cartoon: Dilbert: "I can't log onto the network." Tech support guy: "Send me an e-mail about it."

3. If BJB Had Managed to Send a Takedown Notice, Could It Have Been Sanctioned for Taking Down Documents Subject to a Meritorious Fair Use Defense? BJB is probably fortunate it wasn't able to get the DMCA contact information and instead decided to seek relief directly in court. If they had sent a takedown notice, that would have put BJB roughly where Diebold, the maker of electronic voting equipment, was a couple of years ago. In 2004, some people managed to get a hold of an internal email archive from Diebold discussing problems with its equipment, and circulated it over the web. Diebold sent a takedown notice and had one of the archive copies taken down -- along, incidentally, with an entire ISP that was hosting a link to it, a situation somewhat reminiscent of this one.

Diebold was sanctioned by a federal court in California for its actions under Section 512(f), which provides: "Any person who knowingly materially misrepresents under this section ... that material or activity is infringing ... shall be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, ... or by a service provider, who is injured by such misrepresentation...." The court held that "[n]o reasonable copyright holder could have believed that the portions of the email archive discussing possible technical problems with Diebold's voting machines were protected by coyright," and that therefore claiming copyright infringement was a knowing material misrepresentation.

Taken at face value, Online Policy Group v. Diebold holds that any DMCA takedown notice referencing material that includes some portion subject to a fair use defense violates Section 512(f). That clearly goes too far. All material is subject to a fair use defense, if a small enough portion is taken. Each individual word of every copyrighted work on the planet, taken by itself, is a fair use of that word. So that clearly won't do. There's also language, however, in the Diebold opinion -- although it's unclear how it constitutes a 512(f) violation -- that indicates that the court was most concerned that Diebold's real aim was not in protecting its copyrights, but in using Section 512 "as a sword to suppress publication of embarrassing content." The problem is that Section 512 does not require that the copyright owner state that its primary purpose is to defend its copyrights; therefore bringing suit for a different primary purpose does not constitute a misrepresentation, so long as the material is actually subject to copyright. Nevertheless, to the extent this "purpose" element is being read into Section 512(f), BJB might have been vulnerable.

4. Isn't an Injunction That Extends to "All Others Who Receive Notice of This Order" Ridiculously Overbroad? Yes and no. (See also Michael Froomkin's discussion of this point, and particularly the comments.) Rule 65(d) limits a court's power to restrain to parties and "those persons in active concert or participation with [parties] who receive actual notice of the order by personal service or otherwise." The actual TRO, however, applies by its terms to "all those in active concert or participation with the Wikileaks Defendants, and each of them, and all others who receive notice of this order." The words "and all others" are I think redundant and should have been deleted -- this looks to me like a typo.

The real question is what it takes to act in "active concert or participation" with Wikileaks. Does it take an express agreement, or is it enough for someone to say to themselves, "To heck with the TRO, I'm going to do my bit for democracy and mirror these documents!" Without researching this issue in detail, my intuition is the latter is sufficient to bring someone within a properly framed injunction. Fred von Lohmann has helpfully added a list of cites in the comments of Froomkin's post on this point.

So does that mean that everyone who looks at the orders and then posts a mirror site, anywhere in the country, is subject to contempt of court sanctions in California? I think this is yet another area where are intuitions are bended by the internet. Pre-internet, how would someone get notice of an injunction? Likely because the plaintiff's attorneys SENT the injunction order to the person, after hearing that they were assisting the defendants. That's not conclusive proof of involvement, of course, but the potential scope of persons who would come within a court's injunction that way is necessarily limited.

Not so with both the order and the prohibited documents available online for anyone to find and make use of. Now the potential scope of even a properly crafted Rule 65(b) order is huge.

5. BJB's Litigation Is Doomed to Fail, as It Is Attempting to Stuff the Genie Back in the Bottle. Or, in legal terms, any injunction against information made available on the internet is "futile" and therefore should be denied. This post is already huge and this topic could take up a whole post all by itself. But suffice it to say that although this argument is often made, I believe it receives too little criticism. I believe it falsely assumes that because all websites are available to everyone, that therefore all websites are EQUALLY available to everyone. This is the essence of the "Darknet" critique of Digital Rights Management. But that's just plainly false, as someone who has a low Google ranking can tell you. BJB's litigation could in theory achieve some sort of success, depending on BJB's goals, if it makes the documents harder for some people to find.

Given BJB's likely goals, however, this injunction seems unlikely to succeed in even my sense. That is, the people BJB is worried about getting a hold of the information -- criminals (for the personal data), competitors, and perhaps reporters -- are unlikely to be deterred by barriers such as needing to find an obscure mirror site. This is not a case where a company is attempting to preserve some portion of a broad market for the information that is being eaten away at by infringement. Rather, BJB is attempting to keep the information away from even a few experts. That would require complete stifling of the information, which seems unlikely.

It's possible, and perhaps more likely, that BJB knows this, and is simply attempting a PR move here -- we will do what it takes to go after people who attempt to take your (or perhaps our) data. If so, then this suit might make more sense; although the backlash from shutting down the entire domain name may prove a tactical victory that results in a strategic blunder.

Posted by Bruce Boyden at 06:30 PM | Comments (3) | TrackBack

The Arcade Fire's Choice: Free Culture or Fox Fight?

Yesterday's SuperBowl was a real reversal for me--the game was great, and the ads were about as bad as the Miller High Life Delivery Guy suggests. Admittedly, there was a rousing Arcade Fire song, No Cars Go, in an NFL on Fox ad. Amy Phillips notes:

[W]ould Win, Regine, and the gang really sell their music to Rupert Murdoch so that he could advertise his football television program? No, . . . they wouldn't. Turns out Fox never even asked the band if they could use their song, and they certainly weren't given permission to do so.

Looks like Fox is starting a pattern of "don't ask, just sell." Which raises interesting questions for TAF. They might just shrug off the potential copyright infringement suit, perhaps inspired by Cory Doctorow's critique of permissions culture. But if they do so, they run the risk of appearing to endorse Fox's appropriation of their work.

I don't know how to resolve the dilemma, but it is good to see legal scholars working at the intersection of copyright and trademark law who are trying to untangle these types of rights. Greg Lastowka has written an interesting piece on rights to "digital attribution." Perhaps a truly "free culture" also requires a right to annotation or disavowal--so that uberhip TAF needs neither to associate with Fox nor to send it a C&D letter. Borrowing from the trademark context, maybe Fox should be required to do some "corrective advertising" if TAF so demands.

Photo Credit: AJ, Arcade Fire Concert.

UPDATE: Here is a copy of the ad; here is a take on Fox's potential "ephemeral recordings" defense.

Posted by Frank Pasquale at 07:26 PM | Comments (0) | TrackBack

Who Will Pay for the Content?

Mark Anderson has a concise overview of the big issues in search engine law up at the IEEE Spectrum. Here's a taste:

[James] Grimmelmann writes that four broad areas of law—intellectual property, free speech, antitrust, and the openness of search algorithms—are still very much up for grabs in Internet search. And the next few years could see rulings, settlements, or legislation that will put some of the key legal cornerstones in place.

“The biggest undefined area is how far fair use extends in copyright,” Grimmelmann says, referring to the doctrine that allows for use of copyrighted materials for the purposes of education, public interest, or parody. How broadly Google or Yahoo or any of their peers can claim fair use to index Web sites, databases, books, and other copyrighted content, he says, is the essential issue. And the pending lawsuits filed against Google’s new Book Search engine are where Grimmelmann says the biggest legal aftershocks could originate.

My gut feeling is that we're going to see a lot of settlements between Google and the big players here. (I wonder what the Predictocracy foresees?). On the other hand, another analyst (James V. DeLong) thinks it's in Google's interests to win its IP battles outright:

Several ways of financing the creation and distribution of content exist. Consumers can pay directly, either per ticket (a movie) or for a subscription (XM Radio). Ads can be sold, either combined with a payment (magazines) or stand-alone (broadcast TV). Or a distribution company can sell raw access to the network, and let the users worry about the content (telephone). And of course there are hybrids, where basic service is sold cheaply, and premium offerings bundled on top of it (cell phones, plus ringtones). . . . There is nothing wrong with advertising-based systems, but they should not be allowed to crowd out other forms of financing, in which the consumers of content are actually the customers (and thus the kings).

And this is where things get sticky, because for any other system to exist, defensible property rights must be restored to the system. . . .The concern about Google is based on a fear that it does not share this concern with restoring the viability of business models other than those based on advertising. Indeed, the concern goes further - that Google understands perfectly that the lack of property-rights based business models enhances its market power as the alpha dog of the ad biz, and that it will exercise its political and PR clout to prevent the development of alternatives. Hence its support for the academic communitarians, its hostility to proprietary software, its endorsement of net neutrality, its foot-dragging on YouTube filtering, its development of Android.

That's a fascinating "free markets first" perspective on the problems raised by Google. But my sense is that you will eventually see Google itself becoming the enforcer, broker, and all-around consigliere that will both revitalize property-based models and reinforce the stratification in access to knowledge they can promote. I'll be discussing these ideas more at NYU this Friday, and will try to blog about the talk (and comments) that afternoon.

Hat Tip: Siva.

Posted by Frank Pasquale at 09:09 AM | Comments (0) | TrackBack

Libertarian Dilemmas in the Corporate Surveillance State

My last post led me to an interesting partnership between government and corporations called "OnGuardOnline." Devoted to stopping spam and phishing, that partnership sounds like a good idea to me. But when it comes to extending its influence from fraud-deterrence to IP enforcement and beyond, it raises some interesting questions for libertarians. I would think they want *both* to avoid an Orwellian surveillance state, and to promote corporations' economic freedom. But what happens when the two things go hand-in-hand? Does surveillance by "private" corporations suddenly take on a sinister cast only when its been turned over to government?

For example, the ABA Journal reports that Microsoft is developing new software designed to help employers keep closer tabs on workers:

"Big Brother" software . . . will allow employers remotely to monitor their workers' productivity, competence and physical well-being to a degree never before seen. Among other data, wireless sensors will provide employers with workers' heart rates and stress level, and determine whether they are smiling or frowning, according to the London Times, which bases its article on a patent application filed by Microsoft.

It reminds me of a science fiction novel that envisioned email (maybe it was Snow Crash?), where every employee had to spend an "optimal" amount of time perusing missives from management: too fast indicated you weren't paying enough attention, too slow and you were deemed lazy. Does such monitoring only become troubling when it's handed over to a state actor?

Of course, most people can switch from one job to another if the monitoring gets to be too much; it's much harder (and perhaps impossible) to switch governments. (I believe Rawls eloquently discusses this issue in Political Liberalism.) Carriers provide an interesting "middle case;" over 90% of people have zero, one, or two choices for internet access. If carriers effectively stipulate that all their data are to be shared with government, would that be enough for libertarians to deem them state actors? What about search engines?

I think one of Cory Doctorow's characters was getting at this problem in the following bit of dialogue:

"My parents left East Germany in '65. They used to tell me about the Stasi. The secret police would put everything about you in your file, if you told an unpatriotic joke, whatever. Whether they meant it or not, what Google has created is no different."

I don't think any American company consciously aspires to such a role. However, we need to be aware that in the pervasively regulated industries of the critical information infrastructure, the line between state and market is often vanishingly thin. And it's hard for me to imagine the type of deregulation that could solve that problem--particularly if the government is willing to pay money for the relevant data.

Thurman Arnold's Folklore of Capitalism wryly observed inconsistent reactions to exactly the same action depending on whether it was carried out by private or public actors. One chapter "show[s] how taxation by industrial organizations is a pleasanter way of paying tribute than taxation by government." The next discusses "the curious myth that permanent public improvements, conservation of resources, utilization of idle labor, and distribution of available goods are a burden on posterity if accomplished by an organization called 'government' which assumes public responsibility." Will the same biases inform the public's understanding of surveillance?

Photo Credit: Freiburg Surveillance Protest, hgn_rocket_science.

Posted by Frank Pasquale at 12:01 AM | Comments (1) | TrackBack

Phone Company False Consciousness

Law prof Tim Wu has already done a lot to improve communications policy. His law review articles are models of technical precision and patient persuasion. In the popular press he sometimes takes a different tack--arguing that untrammeled corporate power to remake the telco landscape does not merely harm the public interest, but also that of the shareholders of the companies themselves. Having dabbled in this type of argumentation before, I know how hard it can be to make the case that managers are not acting in a corporation's best interests. But Wu does an excellent job of detailing the legal risks attendant on carriers' increasing role in law enforcement.

Having long fought to maintain open access and fair competition on the internet, Wu is wary of carriers' efforts to perfect control of networks. Those efforts may soon intensify:

Last week AT&T announced that it is seriously considering plans to examine all the traffic it carries for potential violations of U.S. intellectual property laws. The prospect of AT&T, already accused of spying on our telephone calls, now scanning every e-mail and download for outlawed content is way too totalitarian for my tastes. But the bizarre twist is that the proposal is such a bad idea that it would be not just a disservice to the public but probably a disaster for AT&T itself.

***

AT&T's new strategy . . . exposes it to so much potential liability that adopting it would arguably violate AT&T's fiduciary duty to its shareholders. Today, in its daily Internet operations, AT&T is shielded by a federal law that provides a powerful immunity to copyright infringement. . . . To maintain that immunity, AT&T must transmit data "without selection of the material by the service provider" and "without modification of its content." Once AT&T gets in the business of picking and choosing what content travels over its network, while the law is not entirely clear, it runs a serious risk of losing its all-important immunity.

Wu's argument attracted a rather impassioned response from a blogger at NetCompetition.org.

Scott Cleland claims that AT&T's proposal is just another effort to make the internet more secure:

Mr. Wu please calm down. . . . Mr. Wu there is this problem called "spam." . . . . Mr. Wu there is also another problem called malware. . . . Mr. Wu there also happens to be this serious problem of inappropriate material reaching children and teens on the Internet that most parents believe can be very harmful to them. . . . Mr. Wu, it is . . . important to note that there is strong consensus for companies to work together to stop fraud and abuse of their customers.

Note that on some level Cleland talks past Wu's Slate piece, which doesn't focus on the tradeoff between security and freedom online (as, say, Jonathan Zittrain has). Perhaps Cleland is trying to paint the carriers as eleemosynary institutions--note, for instance, the great sacrifices they've made for national security. But he should focus on why the surveillance makes business sense for AT&T--or would amount to mismanagement on a subprime scale.

So would pervasive surveillance be good for AT&T's bottom line? Wu concedes that this initiative, if popular, might lead to a loosening of FCC rules on "net neutrality." There has also been some bipartisan support for extending carrier immunities. My sense is that a growing collaboration between state and corporate actors here could leave AT&T in the clear for a number of actions that appear dicey under black letter law now. Nevertheless, a good lawyer warns his client about what might happen if lobbyists can't work their magic on the Hill. Wu does a great job illuminating the risks to the carriers if Congress doesn't immunize pervasive surveillance for private ends.

Posted by Frank Pasquale at 08:43 PM | Comments (0) | TrackBack

Can You Sue If a Computer Reads Your E-mail?

Thanks Dan for the welcome, and I'm excited to be guest-blogging at Concurring Opinions again. I had intended my first post to be a continuation of the discussion Dan and I were having in the comments last week about heightened review for subpoenas to unmask anonymous actors on the internet, but events have overtaken me. Orin Kerr over at the Volokh Conspiracy has put up a post querying whether network-level filtering for copyright-infringing materials would violate the Wiretap Act; Orin appears to believe that it would, at least without consent from every potential sender of material that was scanned. This merges two of my areas of interest, copyright and electronic privacy law.

First of all, the report is a little sketchy, but it looks to me like the topic came up as possibly an off-the-cuff remark or an answer to a question at the CES conference in Las Vegas. It doesn't appear that anyone is proposing implementing this right away. But the idea seems to be that network intermediaries -- either ISPs serving individual subscribers, such as Comcast or Verizon, or perhaps ISPs closer to the Internet backbone, such as Level 3 or Sprint -- may be able to use fingerprinting technologies to detect and block copyrighted content transiting the network as a way of preventing infringement.

There might be all sorts of practical problems with this. How would a filter distinguish between authorized and unauthorized downloads, for example? But that's not what intrigues me right now. The question I want to focus on is, would this violate the Wiretap Act? It's arguable, but I don't think it would. I don't believe an automated scan of communications, where no permanent copy is made, violates the Act.

Of course, as a cautious lawyer (perhaps a redundant description), I'd certainly advise any telecommunications company to be wary before proceeding here. The ECPA, including the Wiretap Act, is a convoluted statute with a lot of unclear terminology. In essence, the Wiretap Act prohibits intentional interception of an electronic communication. There's an exception for consent -- that's why receiving an email is not a violation of the Act -- but Orin's already indicated why consent might be hard to obtain here from everyone. Could telecommunications companies do this kind of filtering without consent?

I agree with Orin that it doesn't seem that the exceptions allowing service providers to intercept communications for business-related reasons -- Sections 2510(5)(a)(ii) and 2511(2)(a)(i) -- would be of much help. In order to take advantage of the first of these exceptions, the service provider would need to be able to claim that filtering traffic for files infringing on the rights of others is "the ordinary course of its business." Perhaps that will become the ordinary course of business someday, but it doesn't seem to be right now. The second provision cited above specifically rules out "utiliz[ing] service observing or random monitoring" except for quality control, so that's no help either.

Nevertheless, I think there may be room in the Act for automated filtering. It all hinges on the definition of the term, "intercept." The central provision of the Wiretap Act makes any person who "intentionally intercepts ... any wire, oral, or electronic communication" liable. "Intercept" is defined as "the aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device." So, in order to violate the Act, one has to (1) intentionally (2) use a device to (3) acquire (4) the contents of a communication.

What does it mean to "acquire" the contents of a communication? That has always been a little unclear. Here's what I wrote in a chapter on civil applications of the ECPA in the PLI treatise, Proskauer on Privacy:

The issue of what qualifies as “acquisition” has proven more difficult. “Acquisition” is not defined in the act, nor is its interpretation necessarily straightforward. For example, are the contents of a communication that is routed somewhere other than the intended destination, but not listened to or recorded, “acquired” for purposes of the act? What about a communication that is recorded but not listened to? Or a communication that is recorded pursuant to an exception, such as by a party, but later acquired and listened to by someone else?

Courts have struggled with the answers to these questions ever since the Wiretap Act was adopted. For example, a telephone conversation may be intercepted by attaching a wire to a telephone line and stringing that wire to a speaker where the conversation is converted back to sound and overheard by a third party. At what point has interception occurred? One theory is that the interception occurs at the moment the signal in the line branches off to the wire installed by the wiretapper. The newly installed wire itself is the “device,” and the diverted signal is the “acquisition,” even if no speaker is attached at the other end. An alternative theory is that the interception occurs when the signal is converted back to sound at the speaker attached to the wire; the speaker is the relevant “device,” and the reconversion to a human-perceptible form is the “acquisition.” A third alternative is that the interception only occurs if a human listener hears the sound waves produced by the speaker. The speaker is still the “device,” but acquisition does not occur unless a human listener is there to overhear the conversation.

In most cases involving live surveillance of the sort just described, the dividing line between wire, speaker, and listener will not be of critical importance, since all three events will occur nearly simultaneously, and it will likely be the case that the same person or group of people attached the wire and the speaker and are using the apparatus. But interception can also be accomplished by recording a communication for later playback. In such a case, does the interception occur

(a) when the signal is diverted;

(b) when the recording is made; or

(c) when the recording is listened to?

One early case to resolve this issue looked at a tape recording that had been made by one participant in a drug transaction. United States v. Turk, 526 F.2d 654 (5th Cir. 1976). When the police searched his car, they found the tape and listened to it. The other person on the tape, Frederick Turk, was then charged with perjury for having lied to the grand jury. When the police listened to the tape, was that an interception in violation of the Act? The Fifth Circuit said no -- the first acquisition occurred when the recording was made, with the recorder serving as the "agent of the ear." Turk's colleague intercepted the conversation by recording it, but he did so with consent -- his own. The police then acquired a lawfully intercepted recording. Most courts have followed Turk -- an acquisition occurs no later than the point some device records the conversation, even if the recording is destroyed without anyone ever listening to it. As the Turk court put it, "In a forest devoid of living listeners, a tree falls. Is there a sound? The answer is yes, if an active tape recorder is present, and the sound might be thought of as 'aurally acquired' at (almost) the instant the action causing it occurred."

OK, so copying a communication is enough for a violation, even if no human ever reads it or listens to it. But what about the situation where no recording is made and no human is present to read or listen to the content at issue? For example, suppose a wire communication is tapped, and the tap goes to a speaker in an empty room, where it goes unheard. Is that still an "aural or other acquisition"? Turk waffled on that point, and there have been very few cases that have looked at it. One was the Fourth Circuit's decision in Sanders v. Robert Bosch Corp., 38 F.3d 736 (4th Cir. 1994), a case premised in part on the somewhat dubious conclusion that recording incoming calls to help capture bomb threats is not use "in the ordinary course of business." In another part of the opinion, the court reached the issue of whether conversations that were picked up by a microphone in a security office and, unbeknownst to everyone, were directed to a speaker in another area of the plant that apparently was set to a very low volume, had been "aurally or otherwise acquired" under the Act. The court held that it was "satisfied" that no acquisition had occurred. A district court in New Jersey reached a similar conclusion, holding that acquisition occurs when a device either directs a conversation to a human or when it is "permanently memorialized, a feat impossible for a wire to perform." Pascale v. Carolina Freight Carriers Corp., 898 F. Supp. 276, 280 n.1 (D.N.J. 1995).

I think these decisions are a reasonable interpretation of "acquisition." Acquisition means enabling a human to perceive the contents of a communication, either by bringing that communication to a place where humans are present, or by recording it for future perception. If that is the correct interpretation of "acquisition," then automatic scanning of the contents of a communication by a computer is not "acquisition." It neither carries those contents to a human for perception, nor does it capture them for later perception. So programs like Google's Gmail service, which automatically scans email content for advertising keywords, would be fine even without consent on this view. So would the ISP filtering at issue in Orin's post, so long as no contents from the communication are recorded or transmitted to humans. Indeed, given that qualification, it's hard to see what the privacy harm from such automatic scanning would be. Assuming nonsentient computers, who cares if a computer reads your email and never tells anyone about it?

Posted by Bruce Boyden at 06:20 PM | Comments (20) | TrackBack

How Should Courts Handle Cultural Dissensus on Summary Judgment?

That's the deep question unanswered by last year's Supreme Court decision, Scott v. Harris. As Dan Kahan announced here on Balkin, he, current guest-blogger Don Braman, and I have written a paper testing the majority's view that no reasonable jury could or would find for the plaintiff after watching this videotape. The experiment we conducted was simple and intuitive: we showed the video to a 1,350 member subject pool and asked them about it. Our first circulating draft, Whose Eyes are You Going to Believe? An Empirical (and Normative) Assessment of Scott v. Harris, can be downloaded here.

Overall, we found substantial support for the Court's position: most members of the subject pool agreed with the majority about the risks posed by the police chase, the relative fault of the parties, and the ultimate questions of justification. But does majority support mean SJ is correct? Our thought was that that question can't be meaningfully answered without some understanding of the characteristics of the minority of people who would disagree with the court. We wanted to identify who those people were and figure out whether there was any explanation that might explain their differing view of the tape besides that they are unreasonable. In particular, we wanted to test the hypothesis, grounded in cultural cognition theory, that the dissenters would not be random statistical outliers but persons disposed by shared cultural values and other characteristics to process visual information in the tape different from how the majority did.

Our results showed exactly that. Dissenters to the Court's view of the facts and the appropriateness of summary judgment were linked by shared cultural styles that features a commitment to egalitarianism and communitarianism. By the same token, subjects who were strongly inclined to see things the Court’s way were linked by commitments to hierarchy and individualism.

Drawing on Joseph Gusfield's work on “status collectivities," we imagined four potential members of the venire: Pat, Ron, Linda, and Bernie. You can see their pictures to the left. Ron is a rich Goldwater republican from Arizona. Bernie is a socialist professor from Vermont with average income. Linda a social worker from Philadelphia, whose income is also at the mean. And Pat is the average American in every respect.

Using statistical simulations, we found that these individuals would have very different reactions to the video, based on their distinct forms of culturally motivated cognition of the risks involved. Take, for example, subjects' reaction to the statement “[t]he danger that Harris’s driving posed to the police and the public justified Officer Scott’s decision to end the chase in a way that put Harris’s own life in danger." The graphic below illustrates how Ron, Linda, Bernie and Pat will respond.

At least three-fifths (64%, +/- 4%) of the persons who share Linda’s characteristics “disagree”—about one-half either strongly or moderately—with the statement and thus the result in Scott. Those who hold Bernie’s characteristics see things in nearly exactly the same way as those holding Linda’s. Pat does agree with the Scott majority, although not without a bit of equivocation. There is a 60% (+/- 3%) chance that a person drawn randomly from the population would either moderately or strongly agree that the police were justified in using deadly force. There is, however, a 16% (+/- 3%) chance that he/she would be only “slightly” inclined to agree, and over a 20% chance that he/she would conclude upon watching the tape that use of deadly force was unreasonable. Finally, over 80% of the individuals who share Ron's characteristics would find that the police acted reasonably.

What does dissensus of this character mean for how courts should resolve summary judgment motions in cases like, and unlike Scott? When minorities of the venire would process visual information in particular way, but that minority sees things the way they do because they are linked by values?

I'll explore these questions in subsequent posts (as will, I think, Don.)

Previous Posts:

Hoffman, The Death of Fact-finding and the Birth of Truth

Crocker, Do Texts Speak for Themselves?

Kerr, What Are the Facts in Scott v. Harris?

Posted by Dave Hoffman at 03:00 PM | Comments (2) | TrackBack

Access to Drugs

After the fireworks of the Abigail Alliance controversy, access to drugs has been a simmering political and legal issue. I noticed two interesting posts on it today.

1) Eric Goldman comments on a crackdown on a cyberpharmacy:

Today's case involves the criminal prosecution of Dr. Thomas Hanny, a Connecticut-licensed doctor who retired after 30 years as a surgeon. He then hopped on the dot-com bandwagon, writing Internet-mediated prescriptions first for Pharmacon and then, after Pharmacon was shut down by law enforcement, for Jive. Hanny initially had doubts about the propriety of this line of work and even went so far as to hire his own attorney (who also expressed doubts), but Hanny either felt the issue was colorable enough or decided to look the other way, going so far as to ignore a cease-and-desist letter from Missouri prosecutors. Collectively, these proved to be poor decisions that will cost Hanny 33 months of his liberty.

Anyone interested in the topic might want to take a look at Nic Terry's excellent article Prescriptions sans frontières (or how I stopped worrying about Viagra on the Web but grew concerned about the future of healthcare delivery).

2) Reason magazine has interesting coverage of the controversy over OTC status for certain statin drugs. Here's their bottom line:

Last January a Food and Drug Administration (FDA) advisory panel considered a proposal to put Mevacor within easier reach. As they had during previous hearings in 2000, members of the committee fretted that patients would muck up dosages, lose track of cholesterol levels, and make poor decisions about diet and exercise if popping a pill appeared to produce the same results as a healthy lifestyle. One of only three doctors who voted to put the drug over the counter--David Schade, a professor at the University of New Mexico Department of Internal Medicine--based his vote on lack of access for the uninsured.

Despite Schade's opposition, the panel voted 20-3 to keep the drug's prescription-only status. By keeping statins locked within the burdensome and, for some, inaccessible health care system, the decision dampened hopes that statins could find wider use among the millions of Americans who ought to be taking them. For the time being, access to these lifesaving drugs depends on the tiny percentage of the population legally empowered to dole them out.

Though I've been skeptical of a general "right to medical self-defense," the Mevacor story really makes me think. Here's one counterargument:

[A]nalysis of the Merck data shows that 21.5 percent of people deciding on their own to purchase Mevacor over the counter did not need the drug. “This large proportion of purchasers would therefore be exposed to the risks of Mevacor – such as liver damage, muscle damage and other adverse effects – without evidence of any benefit,” Wolfe testified.

I do not know how I would vote if I were on the joint meeting of the Nonprescription Drugs Advisory Committee and the Endocrinologic and Metabolic Drugs Advisory Committee considering this issue. UPDATE: It looks like the most recent vote was negative.

Posted by Frank Pasquale at 09:53 PM | Comments (1) | TrackBack

Should There Be a Red Flag Link?

Links are the lifeblood of the web. You can almost think of a link as a light shining on a page, illuminating territory that might otherwise be hidden in a cloud of information overload. As Ray Cha has explained, "Google ranks pages by the number of links other sites point to a page." So whenever someone writing online links to a page, they increase its prominence relative to other pages.

But what if you want to comment on something you disagree with? Or find utterly inane? If you link to it, you just increase its salience. If the site tracks back to you, you might be able to alert readers to your critique. But if it doesn't, you just end up promoting the site even as you try to fight or mock it. Cha notes that there are some proposals to change this situation:

There have been suggestions to create a newer kind of syntax and link taxonomy which would add to the current binary options of link or no link. The simplest system would be to have three choices, positive li