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 Future of Sensory Jurisprudence

[This post continues the debate about Whose Eyes are You Going To Believe, the draft paper Dan Kahan, Don Braman and I have recently begun to circulate. For previous installments, see posts on Balkin, CoOp, Volokh (Kerr), and CoOp (our reply).]

As I hope we've made clear, our ultimate claim is not (cf. Kerr) that "Justice Scalia was privileging a conservative white male view" of Scott, but that judges need to be generally mindful of the possibility that their views of facts, and factual dissensus, are as culturally contingent as the public more generally. Thus, we argue for rhetorical humbleness, and for deciding cases on grounds other than a holding that no reasonable juror could see the facts in a certain way. It's a modest response to the large problem of cognitive illiberalism in legal decision making.

In this post, I'm going to make a bigger claim, one which isn't so much based on the paper or my co-authors' views, but is instead just the kind of irresponsible extension of the data that blogging encourages. In short: it's my view that Scott is a harbinger of a whole mess of cases on the near horizon: a sensory jurisprudence enabled by a total surveillance society.

Total surveillance as a concept is one well-explored by other authors on this blog. But even in Dan Solove's well-known post – and subsequent highly downloaded article – about the "I've nothing to hide" problem, the doctrinal consequences of total surveillance were virtually ignored. And by doctrinal, I do not mean the privacy law consequences: I mean the likelihood that as surveillance becomes omnipresent in most public and some private places, judges will use surveillance evidence ["SE"] in an increasing number of cases to resolve factual disputes.

This use of SE would seem to promise more accurate, efficient, and ex-post legitimate litigation outcomes. The theory would go that most litigation is driven by a dispute about the facts: SE should dispositively resolve such disputes, promoting settlement and (at worst) streamlining trials. Best of all, opinions enlisting SE would be more likely to be persuasive. Thus, if Judge Cardozo, ruling on the relative fault of the parties in, say Palsgraf, could have just embedded a video of the events instead of describing it in his beautiful but inscrutable prose, perhaps readers/viewers would have more likely to agree with him. Or in a sexual harassment case, if the workplace was totally taped, evidence of a hostile work environment would be both clearer and harder to refute. And in the case of coerced interrogations, a judge could simply embed a video, instead of describing it, and say: "look, it's obvious!"

The connection between SE and surveillance is (ironically) made stark in a video ... but to see it, you'll need to read past the jump.

But this view of SE and the jurisprudence it will produce is too rosy. As we illustrate in our paper, the "facts" a reasonable jury would find after watching the Scott tape are culturally dependent (and also influenced by demographics, wealth, etc.). In a future where more legal cases are resolved based on SE, the danger is that law will ignore this prism effect, and simply embed the evidence as if it resolved the question of "what happened."

This isn't to say, of course, that surveillance evidence is a bad thing in and of itself. It can improve accuracy, reduce frivolous litigation, and deter wrongdoing (think about the various aspects of the CIA taping controversy). But, as I suggested in my first post on Scott, the idea that surveillance evidence will distill litigation into a simple search for truth is fundamentally misguided:

[C]ourts’ ordinary role to [is] determine legal facts, instead of the truth of the "event." We don't read opinions to tell us what happened. We read them to tell us what facts the courts have found. That is why innocence is not, ultimately, a legal defense: the facts found by a jury control. This separation is a necessary part of the dispute resolution system, enabling finality. [Scott] has the potential to destabilize this delicate regime in areas that would likely matter to some folks more than the civil rights suit of one speeder.

Not convinced? Read the paper (again?). It speaks for itself.

(Folks interested in this topic might also like Jessica Silbey's Judges as Film Critics: New Approaches to Filmic Evidence)

Posted by Dave Hoffman at 01:00 PM | Comments (2) | TrackBack

Seinfeld, Language, and Law

Years ago law prof Jedediah Purdy warned us of Seinfeld's charms. Here's a reviewer's account:

The ironic man, whom Mr. Purdy personifies as the sitcom character Jerry Seinfeld . . . is an outright menace. With his ''style of speech and behavior that avoids all appearance of naivete -- of naive devotion, belief, or hope,'' the individual armored in the irony . . . has withdrawn from the political arena just when it needs him most.

But he's certainly outfront with lawsuit PR. Now courts may have to wrestle with the polysemic potential of his irony (and humor generally).

Seinfeld was on Letterman last year, and his comments on the woman now suing his wife for plagiarism were not exactly conciliatory. Now he's being sued for defamation. Here's the video, which gets interesting 40 seconds in:

Jonathan Turley gives excellent background and analysis; he has the following comment

Seinfeld called Lapine . . . “hysterical.” He said: “Now you know, having a career in show business, one of the fun facts of celebrity life is wackos will wait in the woodwork to pop out at certain moments of your life to inject a little adrenaline into your life experience.” He further noted that Lapine could be dangerous, joking “if you read history, many of the three-name people do become assassins . . . Mark David Chapman. And you know, James Earl Ray. So that’s my concern.”

The Seinfelds are clearly going to defend on the basis that his statements were opinion and not factual representations covered by defamation rules.

A few thoughts below the fold. . .

As James Grimmelmann notes, there are a few exceptions to the immunity for opinions:

The relationship of subjective opinion to objective fact . . . is not simple. Thus, for example, Milkovich v. Lorain Journal Co., while stating the rule that the Constitution shields opinions, leaves in place two significant exceptions. A statement of opinion may imply an underlying fact (the Court’s example: “In my opinion John Jones is a liar.”), and even a statement of opinion may be false if not honestly held (the Court’s example: “I think Jones lied,” where the speaker thought nothing of the sort).

In this context, is the "assassin" joke only funny if there is some objective implication of imbalance or impropriety regarding the person whom it's aimed at? I find the case a bit difficult because Jerry Seinfeld (the person) has sometimes glided effortlessly between being a certain persona and playing one. For example, consider this video of him on Larry King Live:

Is Seinfeld here seamlessly sliding into "playing an obnoxious character" or is he being an obnoxious character? Is this the "true self" speaking, or spinning out some subtle humor (that the miffed King appears not to be in on)?

Having listened to his talk at the NY Academy of Sciences, I'm reminded of Stephen Pinker's takes on the slipperiness of language, here related by reviewer William Saletan:

Language is a social medium with social purposes. Sometimes, we use it not to communicate facts about the world but to filter them. We euphemize bribes as “contributions” to preserve the dignity of lobbyists and legislators. We phrase treaties vaguely because if they were clear, nobody would sign them. . . . . We complain about doublespeak but rely on double meanings.

Turley has the following take on Seinfeld's double meanings:

While he appears to be joking, he is also clearly portraying Lapine –at a minimum — as unbalanced. . . . Terms like wacko can be claimed to have a more innocent meaning. Under the principle of Mitior sensus, “when words have two meanings, lenient and severe, they will always be construed in the more lenient sense.” Yet, this is generally a jury decision and the Seinfelds and their publisher will first be subject to discovery — a potentially risky business.

Having read a few cases in this area, I've been worried by some judges' willingness to take every potentially defamatory statement piecemeal, characterize them individually as opinions or "obvious hyperbole," and dismiss the underlying defamation case. A series of innuendoes, jokes, dismissals, and jibes can probably undermine a reputation far more effectively than one false fact.

On the other hand, Seinfeld himself has satirized the lengths he would have to go to in order to avoid any unwanted overtones--not that there's anything wrong with that!

Posted by Frank Pasquale at 11:01 PM | Comments (10) | TrackBack

If It Bleeds, It Leads

In an interesting twist on the old adage of broadcast journalism, "if it bleeds, it leads," CNN.com has quietly modified the news categories on its home page, to replace "Law" with "Crime". When you follow the "Crime" link, you find somewhat greater diversity of coverage, now under the heading of "Crime and Justice".

Perhaps tellingly, though, consider the two teaser headlines on the home page, as I'm typing this post:

"Blood near Marine's likely grave, sheriff reports"

"O.J. Simpson headed to Las Vegas jail cell"

"Crime" is clearly a lot easier a sell than "Law". What might that forebode, though, for the general public's notions of law? What long-term consequences can we expect of a consumer-driven orientation of the mass media to covering "crime" versus "law"? Perhaps few. Perhaps CNN.com is simply a place to go for entertainment and titillation anyway. In that case, it doesn't much matter whether the coverage is of blood spatter or of the Supreme Court. But if this is supposed to be "the news" - somehow, the idea of "All the News That's Fit to Print" comes to mind - I have to wonder.

Posted by Robert Ahdieh at 08:10 AM | Comments (1) | TrackBack

Law Talk: George R. R. Martin

In today's episode of Law Talk, we hear from George R. R. Martin, the prolific author of the "high fantasy" series The Song of Ice and Fire. George has also been a screenwriter and Hollywood producer, an editor, a chess tournament director, a union leader, and a volunteer media director for the Cook County Legal Assistance Foundation. As I've previously written, George is a leader in the movement to bring a degree of realism to fantasy, and he has been dubbed (by Time Magazine) "The American Tolkien."

George and I talked for almost an hour, on topics ranging from the role of law in fantasy books (starting 3.5 minutes in); the limits of magic as a plot device (20 minutes in); law professor Robert Cover (22 minutes in, brought up by me, to my shame); why most fantasy novels seem to be set in merry olde england (28 minutes in); fan fiction and copyright infringement (31minutes in); how writing sci-fi is like selling music, and whether he likes Radiohead's distribution model (35 minutes in); how to keep control over your work when it is transformed into another medium (39 minutes in); and inheritance law (toward the end).

George is a fantastically interesting, well-read, thoughtful guy, and I think you will enjoy this interview quite a bit. (If you aren't a fan of the books, ignore my constant, irritating, references to characters you have never heard of.) Finally, if you want to learn more about George, visit his blog (which he says isn't one) and join the hordes of folks waiting for the next installment of the series, A Dance With Dragons, to ship.

Missed the link? Here's the interview again. Warning: it's a big file!

You can subscribe to "Law Talk" using iTunes or Feedburner. You can also visit the "Law Talk" page at the iTunes store. For previous episodes of Law Talk at Co-Op click here.

For other posts in the "Law and Hard Fantasy" Interview Series, see:

• Fantasy’s Apocalyptic Turn
• The Law and Hard Fantasy Interview Series
• An Interview with Pat Rothfuss

Posted by Dave Hoffman at 12:26 PM | Comments (28) | TrackBack

Introducing: The Law & "Hard Fantasy" Interview Series

Earlier this summer, I wrote a post titled Fantasy’s Apocalyptic Turn, about the development of the "hard fantasy" movement in modern fiction. As I commented:

[I]t is worth briefly thinking about the relationship between epic fantasy and law. Although the legal aspects of fantasy role playing games are now well-marked out, there has been little work (outside of the Potterverse) on how fantasy authors imagine legal rules' role in society. If epic fantasy is read largely by adolescent boys, this missing attention makes a great deal of sense. You don't see law review articles about Maxim. But, if fantasy, or hard fantasy, has become a literature for the rest of the population, it is worth thinking about the complete and total absence of civil law in these books, and the light touch of criminal law more generally. Is it impossible to imagine lawsuits and magic coexisting in the same society?

This post got some folks blogging - in agreement and dissent.

I'm still interested in the relationship between epic fantastic fiction and law, and I realized that if I really wanted to know about how law makes it way (or doesn't) into fantasy novels, I might as well ask some actual authors about it. So, I got in touch with a few writers who I consider to be among the best practitioners of "realistic" epic fantasy, and I've put questions to them. Now in doing so, I realize that I'm in danger of over-intellectualizing books that require a certain amount of suspended belief to be digested. Worse, really digging into these stories calls to mind E.B. White's quote about frogs and humor. Indeed, as the picture to the right illustrates, law's relationship to magic has the potential to be pretty gruesome.

But it's worth a try. Over the next several months, I'll be bringing you several author responses. Some terrific folks are already on board, including the reigning king of the movement, George R. R. Martin, and I'm hoping for more responses to trickle in. But our first guest is a newcomer to the genre, Pat Rothfuss, author of the new, acclaimed, novel The Name of the Wind. I'll be posting my interview with Pat (hopefully) later on in the weekend.

(Image Source: Examination of a Witch, Thompkins H. Matteson, Wikicommons)

Posted by Dave Hoffman at 03:39 PM | Comments (3) | TrackBack

Conditions for the Digital Library of Alexandria

I have been in the middle of a major rethink of search engines' efforts to digitize books. As it started I enthusiastically celebrated their potential to tame information overload. But major research librarians are now questioning search engines' practices here:

Several major research libraries have rebuffed offers from Google and Microsoft to scan their books into computer databases, saying they are put off by restrictions these companies want to place on the new digital collections. The research libraries, including a large consortium in the Boston area, are instead signing on with the Open Content Alliance [OCA], a nonprofit effort aimed at making their materials broadly available.

As the article notes, "many in the academic and nonprofit world are intent on pursuing a vision of the Web as a global repository of knowledge that is free of business interests or restrictions."

As noble as I think this project is, I doubt it can ultimately compete with the monetary brawn of a Google. And why should delicate old books get scanned 3 or 4 times by duplicative efforts of Google, Microsoft, the OCA, and who knows what other private competitor? I also worry that a fragmented archiving system might create a library of Babel. So what is to be done?

My new position is: leverage current copyright challenges to Google's book search program to guarantee that it serves the public interest. Here's how that might work:

Google’s plans to scan and index hundreds of thousands of copyrighted books have provoked extraordinary public controversy and private litigation. This project aims to archive and provide text-based indexing for an enormous number of books. Google’s scanning of copyrighted books is prima facie infringement, but Google is presently asserting a fair use defense. The debate has largely centered on the rival property rights of Google and the owners of the copyrights of the books it would scan and edit.

Given Google’s alliance with some of the leading libraries in the world, journalistic narratives have largely portrayed the Google Book Search project as an untrammeled advance in public access to knowledge. However, other libraries are beginning to question the restrictive terms of the contracts that Google strikes when it agrees to scan and create a digital database of a library’s books. While each library is guaranteed access to the books it agrees to have scanned, it is not guaranteed access to the entire index of scanned works.

Those restrictive terms foreshadow potential future restrictions on and tiering of their book search services. Well-funded libraries may pay a premium to gain access to all sources; lesser institutions may be left to scrounge among digital scraps. If permitted to become prevalent, such tiered access to information would threaten to rigidify and reinforce existing inequalities in access to knowledge, and life chances. Such tiering divides society into two groups–those who can afford to access the information, and those who cannot. To the extent that the latter group’s relative poverty is not its own fault, information tiering inequitably subjects it to yet another disadvantage, whereby others’ wealth can be leveraged into status, educational, or occupational advantage.

Given the diciness of the fair use case for projects like Google Book Search, courts should condition the legality of such archiving of copyrighted content on universal access to the contents of the resulting database. Landmark cases like Sony v. Universal have set a precedent for taking such broad public interests into account in the course of copyright litigation. Given the importance of “commerciality” in the first of the four fair use factors, suspicion of tiered access could also be figured into that prong of the test. A more ambitious (if less likely) solution would require Congress to set such terms in a legislative settlement of the issue.

However the matter is ultimately settled, any outcome in favor of dominant categorizers should be conditioned on their maintaining open access to search results. Such a condition would help assure that the type of “tiered access” common for legal resources would not further pervade the networked world. If Google’s proposed extension of the fair use defense succeeds, such a holding should be limited to current versions of the services that conduce to a common informational infrastructure. To the extent it or other search engines limit access to parts of their index, their public-spirited defenses of their archiving and indexing projects are suspect.

PS: For more thoughts on the future of digital archiving, see Diane Leenheer Zimmerman's Can Our Culture Be Saved?

PPS: This post is part of a series, which starts here.

Photo Credit: ekornblut, Wall of Library of Alexandria.

Posted by Frank Pasquale at 08:11 PM | Comments (3) | TrackBack

Privacy's Other Path: Recovering the Law of Confidentiality

Dan and I have just uploaded the final published version of our article, Privacy's Other Path: Recovering the Law of Confidentiality up on SSRN. The paper is in print in the latest volume of the Georgetown Law Journal and we're both very excited it's out. Our paper tells the story of how privacy and confidentiality law diverged in Britain and America after 1890, how they have begun to converge once again in recent years, and how the law of confidentiality holds great promise for American law as it continues to grapple with the problems of personal information. Here's the abstract:

The familiar legend of privacy law holds that Samuel Warren and Louis Brandeis invented the right to privacy in 1890, and that William Prosser aided its development by recognizing four privacy torts in 1960. In this article, Professors Richards and Solove contend that Warren, Brandeis, and Prosser did not invent privacy law, but took it down a new path. Well before 1890, a considerable body of Anglo-American law protected confidentiality, which safeguards the information people share with others. Warren, Brandeis, and later Prosser turned away from the law of confidentiality to create a new conception of privacy based on the individual's inviolate personality. English law, however, rejected Warren and Brandeis's conception of privacy and developed a conception of privacy as confidentiality from the same sources used by Warren and Brandeis. Today, in contrast to the individualistic conception of privacy in American law, the English law of confidence recognizes and enforces expectations of trust within relationships. Richards and Solove explore how and why privacy law developed so differently in America and England. Understanding the origins and developments of privacy law's divergent paths reveals that each body of law's conception of privacy has much to teach the other.

Posted by Neil Richards at 03:56 PM | Comments (0) | TrackBack

Crossing Lines

In cyberlaw, we are repeatedly reassured by leading companies that certain suspect actions just won't happen because they don't make economic sense. For example, opponents of net non-discrimination principles say that carriers have an economic incentive to maximize the value of that network, so they won't discriminate against particular applications within it. But this assumption is now being challenged. . . . and we are seeing cases where a carrier may not merely discriminate against certain applications, but also conceal the fact that it is doing so:

Comcast is pretending to be part of online conversations in order to frustrate users who want to use particular online applications. This happens all the time in the name of “traffic shaping” — it’s the kind of thing that China does to interfere with internet use. What’s different and important about today’s story is that people have carefully experimented. We can now understand exactly what Comcast is doing.

More after the jump . . .

The AP is now reporting that Comcast "interferes with attempts by some of its high-speed Internet subscribers to share files online, a move that runs counter to the tradition of treating all types of Net traffic equally." Certainly a carrier has a right to manage traffic when congestion becomes a problem, but such management ought to be based on usage, not on applications. Moreover, Comcast appears to be trying to mask its traffic management methods:

Comcast's technology kicks in, though not consistently, when one BitTorrent user attempts to share a complete file with another user. Each PC gets a message invisible to the user that looks like it comes from the other computer, telling it to stop communicating. But neither message originated from the other computer — it comes from Comcast. If it were a telephone conversation, it would be like the operator breaking into the conversation, telling each talker in the voice of the other: "Sorry, I have to hang up. Good bye."

Matthew Elvey, a Comcast subscriber in the San Francisco area who has noticed BitTorrent uploads being stifled, acknowledged that the company has the right to manage its network, but disapproves of the method, saying it appears to be deceptive.

But don't be surprised if Comcast says it has a right not merely to shape traffic, but to shape it secretly--I suspect it may characterize these blocking methods and the situations it deploys them in as trade secrets.

Though network congestion is the ostensible rationale for discrimination here, the founder of BitTorrent suspects that carriers may be engineering artificial scarcity:

Ashwin Navin . . . confirmed that it has noticed interference from Comcast, in addition to some Canadian Internet service providers. "They're using sophisticated technology to degrade service, which probably costs them a lot of money. It would be better to see them use that money to improve service," Navin said, noting that BitTorrent and other peer-to-peer applications are a major reason consumers sign up for broadband.

Navin suggests that it's not in Comcast's interests to disable apps like BitTorrent. But note that Comcast doesn't just sell the pipe--it's also selling content like cable TV. Just like Hollywood tried to use secondary liability laws to control the development of the VCR, broadband providers have tremendous incentive to dole out bandwidth (and applications) on their own terms. Who knows, maybe repeated frustration with YouTube or ABC-Online will drive people to buy more cable channels?

As we see the dark side of much-ballyhooed vertical integration of content and conduits, Susan Crawford has the following bottom line:

Like the Verizon/NARAL flap and the Pearl Jam escapade, here’s another story about currently-legal action, permitted under someone’s elaborately-walled Terms of Service, that interferes with basic communications. Comcast will say “we’re not blocking.” But they’re degrading, prioritizing, and filtering, without telling users. And they’re planning to do much more of this.

What’s the solution? Structural separation. You’re either a plain-vanilla transport company serving all comers, or you’re something else competing for our attention. But this mixture, this hybrid of apparent-communication plus editorial control, is unacceptable.

Larry Lessig's warnings are looking more prophetic:

The environment of innovation on the original network will change according to the extent that cable becomes the primary mode of access to the Internet. Rather than a network that vests intelligence in the ends, the cable-dominated network will vest an increasing degree of intelligence within the network itself. And to the extent it does this, the network will increase the opportunity for strategic behavior in favor of some technologies and against others. An essential feature of neutrality at the code layer will have been compromised, reducing the opportunity for innovation worldwide.

Posted by Frank Pasquale at 12:58 PM | Comments (3) | TrackBack

Eighth Circuit Rules Against MLB In Fantasy Baseball Suit

Earlier today, the Eighth Circuit ruled against Major League Baseball in the high-profile fantasy baseball case of CBC Distribution and Marketing, Inc. v. Major League Baseball Advanced Media. The case was brought by CBC, a St. Louis-based fantasy sports company against Major League Baseball seeking a declaratory judgment that CBC's fantasy baseball games did not infringe upon the players' rights of publicity or in the alternative that the First Amendment immunized it from liability. Dan and Kaimi blogged about this case last year here and here. In today's ruling, the Eighth Circuit held that CBC infringed the players' rights of publicity (which they had licensed to MLB) but that any state-law publicity claim was preempted by CBC's First Amendment right to use player names and statistics.

I've got a lot to say about this case (which I think got the First Amendment issues exactly right), but in the interests of full disclosure, I should note that I consulted with lawyers from the St. Louis office of Harness Dickey in structuring the First Amendment and publicity arguments, and that I helped draft some of the briefs. Since this compromises any appearance of objectivity, I'll say only this by way of comment: I think the case was straightforward from a First Amendment point of view, but the really interesting implication of the case is what it will mean for the massive (and profitable) fantasy sports industry. CBC had been a licensee of baseball for the statistics, but baseball terminated the license a few years ago, apparently in an attempt to bring all fantasy baseball (and all of its profits) under its control. Today's holding seems to stand for the proposition that baseball cannot "own" the historical facts of its games (just as famous people can't own the facts of their biographies), and it protects fantasy sports companies to continue to offer games that are not merely "official" licensed products controlled by the major sports leagues. It's also a much-needed strike against the rise of unnecessary intellectual property licensing, which my colleague Jennifer Rothman, as well as Jim Gibson and Elizabeth Winston have written about recently.

Posted by Neil Richards at 04:34 PM | Comments (8) | TrackBack

The Future of Reputation: Gossip, Rumor, and Privacy on the Internet

I'm very excited to announce that my new book, The Future of Reputation: Gossip, Rumor, and Privacy, is now hot off the presses! Copies are now in stock and available on Amazon.com and Barnes & Noble's website. Copies will hit bookstores in a few weeks.

From the book jacket:

Teeming with chatrooms, online discussion groups, and blogs, the Internet offers previously unimagined opportunities for personal expression and communication. But there’s a dark side to the story. A trail of information fragments about us is forever preserved on the Internet, instantly available in a Google search. A permanent chronicle of our private lives—often of dubious reliability and sometimes totally false—will follow us wherever we go, accessible to friends, strangers, dates, employers, neighbors, relatives, and anyone else who cares to look. This engrossing book, brimming with amazing examples of gossip, slander, and rumor on the Internet, explores the profound implications of the online collision between free speech and privacy.

Daniel Solove, an authority on information privacy law, offers a fascinating account of how the Internet is transforming gossip, the way we shame others, and our ability to protect our own reputations. Focusing on blogs, Internet communities, cybermobs, and other current trends, he shows that, ironically, the unconstrained flow of information on the Internet may impede opportunities for self-development and freedom. Long-standing notions of privacy need review, the author contends: unless we establish a balance between privacy and free speech, we may discover that the freedom of the Internet makes us less free.

For quite some time, I've been thinking about the issue of how to balance the privacy and free speech issues involved with blogging and social networking sites. In the book, I do my best to propose some solutions, but my primary goal is to spark debate and discussion. I'm aiming to reach as broad an audience as possible and to make the book lively yet educational. I hope I've achieved these goals.

I welcome any feedback. Please let me know what you think of the book, as I'd be very interested in your thoughts.

Posted by Daniel J. Solove at 12:31 AM | Comments (3) | TrackBack

Cell Phone Gag Rule

There is big news on the net neutrality front today: Verizon Wireless has decided to block one group's political speech from its text-message program:

Saying it had the right to block “controversial or unsavory” text messages, Verizon Wireless has rejected a request from Naral Pro-Choice America, the abortion rights group, to make Verizon’s mobile network available for a text-message program.

Note that this is not a pro-life policy, but one of blandless and depoliticization. As the Catholic Church realizes, it could well be the next to be censored or suffer degraded quality of service:

With no safeguards for net neutrality, religious groups, including the U.S. Conference of Catholic Bishops, fear that Internet service providers will discriminate against them and charge them if they want to get the same level and speed of service they now receive for their online sites when someone types in their Web address.

This latest development should put net neutrality opponents on the defensive, at least in academic circles. Brett Frischmann and Barbara von Schewick have already called into question the economic foundations of the most sophisticated defense of a laissez-faire position on the matter. But Verizon Wireless's new policy shows that the cultural consequences of untrammeled carrier control over content may be far worse than its potential to stifle the types of efficiency and innovation economists usually measure.

Many fear that powerful carriers will bend culture to money by auctioning off a “fast-track” and degrading the quality of service of those who cannot afford it. Imagine a world where HBO shows are delivered ten times as fast as Univision ones, or where wealthy churches’ sermons come through with crystalline clarity and poorer ones are consigned to grainy obsolescence. Imagine being stuck with video sharing platforms as crippled as American cell phones, and finding your connection to YouTube suddenly lost whenever you try to watch something that has not been approved by a consortium of content owners. Verizon Wireless's decision today adds a new wrinkle to the problem: imagine future communications platforms stripped of anything controversial or "unsavory."

Of course, I can see why many proponents of network neutrality don't want to stray into the "cultural;" it seems so contestable, while the economic case for net neutrality can appear compelling on its face. Consider Robert Frieden's take on the DOJ's ex parte comments opposing net neutrality (which I've reprinted, with his permission, from a list-serv):

[The DOJ's comments] are incredibly simplistic and offer further proof of how sponsored research and questionable statistics become the basis for policy, regulations and law. In a nutshell the Justice Department buys the laissez faire view that the marketplace can resolve all potential problems and no real problem has arisen.

The Justice Department can make its case only by ignoring unsponsored research, that point to real potential for problems, statistical compilations that show the broadband marketplace in the U.S. as comparatively inferior to best practices both in terms of price and quality, and the practical consequence of a cable/telco duopoly in Internet access.

By the Justice Department's reasoning it should follow that because of deregulation and commensurate marketplace competition in the wheeling of electricity and packets there could be no potential market manipulation by any single player or group in either industry. We know that in the electricity marketplace Enron traders managed to create bottlenecks, run up the spot market price and generate false congestion.

I am willing to speculate that Enron-type tactics can occur in the wheeling of packets. The fact that a Title II regulated common carrier, telephone company (Madison River Communications, LLC) could not get away with absolute blocking of packets ­without detection and punishment­ says nothing about the ability of unregulated or lightly regulated Title I information service providers to engage in harmful and unlawful bit discrimination.

I have stood midway in the debate on network neutrality and have identified plenty of instances where price and QOS [quality of service] discrimination make economic sense and do not violate applicable laws. See http://papers.ssrn.com/sol3/papers.cfm?abstract_id=893649; http://papers.ssrn.com/sol3/papers.cfm?abstract_id=962181. But I cannot buy the Justice Department’s preoccupation with the virtue of discrimination, having absolutely no regard for the real potential for undetected or unremediable discrimination.

I hate to think­ . . . ­that “the fix is in” and this nation’s Justice Department files paper[s] on behalf of specific stakeholders such as AT&T. But as the Network Neutrality debate plays out I increasingly believe that “Bellhead” investment recovery, pricing and billing mindsets will reshape the Internet to become a hybrid of the Public Switched Telephone Network, an outcome I predicted in 2001; see http://papers.ssrn.com/sol3/papers.cfm?abstract_id=29012.

Verizon Wireless's decision suggests matters may be even worse; imagine a telephone network that wouldn't let you talk about abortion over its lines! Ony the most determined optimists think *that* could be cured by "the market:"

“Instead of having the government get in the game of regulating who can carry what, I would get in the game of promoting as many options as possible,” said Christopher S. Yoo, a law professor at the University of Pennsylvania. “You might find text-messaging companies competing on their openness policies.”

I think precisely the reverse is more likely to happen: big lobbies will compete to shut up their opponents. Imagine the boycotts. Perhaps "patriotic" organizations will call for a boycott of companies that allow anti-war messages on their networks.

As I head to the Telecommunications Policy Research Conference this weekend, I look forward to sessions on net neutrality. I have faith that creative engineers and comparative law scholars can devise sensible rules to assure nondiscrimination in the delivery of bits. It may be the only way to avoid the "race to the bottom" of corporate censorship that laissez-faire threatens here.

Photo Credit: Mickal.

Posted by Frank Pasquale at 09:42 PM | Comments (7) | TrackBack

Reputation Regulation in Japan

Recent cases involving Avvo.com (a lawyer rating service) and gripe sites indicate that reputation management is a hot legal issue in America. Mark D. West's recent book on the Rules of Scandal in Japan and the U.S. puts these developments into an interesting comparative light. From an excerpt published in the Michigan Law Quadrangle:

Japan seems to place more emphasis on honor, constructing 'defamation' as a deeper, broader, or more common injury for which more people might seek redress in a courtroom. . . . [For example, an actress sued] a publisher of a woman's weekly over an article that claimed she . . . yell[ed] "Shut up!" at her dog, [did] not clean[] leaves out of her drainage ditch, and never apologiz[ed] to anyone (she won).

I guess defamation suits mean never having to say you're sorry. But as Dan S. has shown, there is more than one way to shame a misbehaving dog owner.

Posted by Frank Pasquale at 11:23 AM | Comments (0) | TrackBack

Piercing the Veil of Anonymous Bloggers

I'm delighted to be guest-blogging at Concurring Opinions, and thanks to the crew here for the invitation! I regularly blog to a much smaller audience at Info/Law (and will cross-post most of these guest appearances over there), but it will be fun to discuss a somewhat wider variety of topics here. That said, it turns out my first entry is at the heart of information regulation.

Brian Leiter notes this news story about a South Korean law which has just taken effect, requiring large web sites to obtain real names and the equivalent of Social Security numbers from everyone who posts content. He compares this approach to that taken in the US where, he says, "there exist only private remedies against Internet sociopaths and misogynistic freaks who hide behind anonymity. I suppose time will tell which is the better approach."

Personally, I don't need to wait for the passage of time to criticize the South Korean initiative (which has been under discussion there for some four years). Obviously, this law arises in a cultural context very different from our own, which I believe explains a good deal of the difference in approach. And it may not even be as different as it first appears. But there are principled reasons, distinct from cultural ones, to oppose a "show me your papers" internet.

First and foremost, it should be no surprise that China reportedly is looking at a similar model -- as a technique to curb dissent, not just cyberbullying. (If you have seen the film The Lives of Others, pictured above -- and you really should see it -- you will remember how it portrayed East Germany registering typewriters.) The ability to remain anonymous protects unpopular speakers who might otherwise be unable to spread their ideas. In some countries, anonymous bloggers risk life and limb. Despite massive internet filtering by governments, blogging still provides dissidents a powerful tool. Even in more democratic countries, whistleblowers, political outsiders, and unhappy employees use anonymous blogging to avoid retribution. An outright ban on anonymity will curtail such often-useful speech.

Second, I am pretty confident a law like South Korea's would be unconstitutional here. There is a clear right to anonymous speech under McIntyre v. Ohio Elections Commission. An influential district court case from 1997 (the web's early days) relied on McIntyre to strike down as overbroad a Georgia law banning pseudonymous internet communications. (This is one of many cases the ACLU has brought in defense of internet anonymity.)

Finally, there are many technical methods to increase the chances of remaining anonymous online, such as using proxy servers or onion routing. (Ethan Zuckerman summarizes them in this guide aimed at dissidents and published by Reporters Without Borders). A demand for a real name and ID number makes these tactics somewhat harder to use, but certainly not impossible for a determined anonymity-seeker. The result: while most of us who follow the rules would lose the realistic capacity to stay anonymous online, the truly dedicated cyberbully, slanderer, harasser, or spammer can still remain in the shadows. Indeed, it's not clear to me that a legal requirement to offer a (phony) name and ID number adds any real teeth against those with the knowledge and incentive to remain anonymous.

Without question, many in the US abuse online anonymity. They can cause real harm. So, are we just stuck with these abuses as the price we pay for free speech? Not entirely. There are more modest remedies available, and they are pretty much in place already. For one thing, individual sites are free to allow more or less anonymity as they see fit. Many ban anonymous comments. Many others, if they allow screen names or pseudonyms, still require registration. Lots of sites also guard against the prevalence of "Internet sociopaths and misogynistic freaks" by moderating their comments.

More fundamentally, in situations where a site does not choose to do any of the above, there is the John Doe subpoena. A complaint that states a reasonable claim against John Doe defendants for unlawful online speech usually will result in a judicial order that a web site or ISP provide available information about the speaker. Generally that information will include at least an IP address, and often the full name and postal address. Such data has been plenty for the recording industry and the government to identify defendants and proceed against them. I predict a similar outcome in the AutoAdmit case. (Indeed, Concurring Opinions' own Frank Pasquale recently found his name in use as a pseudonym for a blogger running a gripe site critical of a health care company; in that case the court has allowed the plaintiff to "pierce the pseudonymous veil" and discover the blogger's identity.) We may need some better procedures for discerning when such "piercing" on the basis of a complaint is appropriate, but I believe this doctrine will develop, just as it did in "corporate veil" cases. In that sense, we are evolving toward a model that allows pseudonymity, but rarely true anonymity.

That may not be so different from South Korea's approach in most cases. As I understand the new law there, large web sites must collect the information, but need not turn it over unless the victims sue. Except for a somewhat stronger mandate for collecting information, that is pretty similar to the John Doe subpoena. And since such subpoenas appear to have proven adequate in the US to identify speakers in most cases, this may not be as important in the real world as it first appears. That said, to the extent there are differences, leaving some breathing room for anonymity is a better fit with our free speech traditions.

Posted by William McGeveran at 04:42 PM | Comments (2) | TrackBack

RIAA's Turn to Be a Defendant

Matthew Sag has convincingly argued that RIAA's litigation war against downloaders is rational for the industry: it's basically self-financing, as just about every defendant is too terrified of massive statutory damages to put up a fight. But the record industry's declining fortunes may make its court victories Pyrrhic.

Moreover, a scorched earth litigation strategy against infringers is getting less viable as a few defendants fight back. For example, one litigant has found a creative way of subjecting RIAA's tactics to public scrutiny:

Former RIAA defendant Tanya Andersen is now suing the major record labels and the RIAA for negligent and illegal investigation and prosecution. In a thirteen count civil suit filed in Oregon District Court, she alleges that record labels didn’t use properly licensed investigators and violated her privacy.

I'm still waiting for someone to bring the antitrust lawsuit that was forestalled by Bertelsmann's purchase of Napster a few years ago. As Napster-slaying Judge Patel said of the RIAA's distribution strategy then, "These ventures look bad, smell bad and sound bad" from an antitrust perspective.

Of course, given the lassitude of federal authorities, the antitrust case will be hard to make. But I look forward to more privacy challenges. As Sonia Katyal has argued,

recent developments in copyright law. . . have invited intellectual property owners to create extrajudicial systems of monitoring and enforcement that detect, deter, and control acts of consumer infringement. As a result, . . . intellectual property rights have been fundamentally altered—from a defensive shield into an offensively oriented type of weapon that can be used by intellectual property creators to record the activities of their consumers, and also to enforce particular standards of use and expression. . . .

If agencies fail to police these tactics, perhaps only individuals can fight for themselves. But as Bruce Scheier asks, why doesn't the US have a privacy commissioner?

Hat Tip: BoingBoing.

Posted by Frank Pasquale at 10:59 PM | Comments (1) | TrackBack

Trumpeting the Telecosm

Many thinkers have touted the revolutionary potential of the "telecosm," a world of infinite bandwidth capable of transmitting any message anywhere. But I've come across few passages as rhapsodic as this:

The network will supply room enough for every sight and sound, every thought and expression that any human mind will ever wish to communicate. It will make possible a wildness of spirit, where young minds can wander in adventurous, irresponsible, ungenteel ways. It will contain not innocence, but a sort of naïve gaiety, a buoyant, carefree feeling, filled with confidence in the future and an unquenchable sense of freedom and opportunity. It will be capitalist civilization at its best.

Can anyone guess where I found this gem of a prophecy (circa 1999)?

A treatise! -- Peter Huber, Michael Kellogg, & John Thorne, Federal Telecommunications Law 77-78 (2nd ed., 1999).

I have to admit that it's an extraordinarily well-written treatise, but that bit in the introduction strikes me as a bit of a stretch.

By the way, if you're now hungry for some substantive and cautious "big ideas" on the future of communications policy, check out this post.

Posted by Frank Pasquale at 09:49 PM | Comments (1) | TrackBack