Limitations of Technology and “Right Size” Challenges

Last week, I read that a hiker had come across the remains of adventurer Steve Fossett’s airplane near Mammoth Lakes, California (full story here). What was unique in the search for the downed plane last year was the nature and extent of the search and rescue effort. Thousands of people on their computers joined together to scour pictures taken by aerial photography in hopes of saving Fossett or at least finding the crash site. This distributed search network was part of Amazon’s Mechanical Turk – which breaks down massive tasks (like scanning through thousands of aerial photographs) into small portions that can be performed by thousands of individuals, taking up only a few minutes of their time.
Professor Yochai Benkler has been writing about these types of collaborative networks, most recently in his book The Wealth of Networks, and I’ve recently been thinking a lot about them too, especially what they might mean for the future of work (and accordingly, traditional labor and employment law doctrine). But before getting too excited about these new forms of distributed collaboration, I have to sound a note of caution.

After all, the Mechanical Turk searching didn’t end up finding Steve Fossett’s plane last year. Was it hubris to think that new technology could solve the problem of search and rescue? Well, perhaps it was one of those intractable problems – according to this account:

“rugged mountainous, tree-covered terrain gave … less than a 10 percent probability of detecting debris from the wreckage during aerial fly-overs. . .. The fact that a large portion of the small aircraft was fabric-covered and that the aircraft quite likely burned on impact leaving very little exposed fabric or metal, also made it harder to find.”

This doesn’t mean that the Mechanical Turk/distributed work technology isn’t useful, or that this type of search and rescue effort won’t be successful in the future. But perhaps this was too ambitious a task. My co-author Rob Rogers and I asked similar questions when I was writing about a different kind of collaborative knowledge gathering tool – prediction markets. Picking the “right size” challenge may be an important part of promoting these new technologies – instead of choosing problems that would be a wonderful advance, but which might be likely to fail. Which types of problems could be benefited from a distributed networking solution? Which will get them? Which will assist the development of the technology, and which may hurt it? In the meantime, RIP, Steve Fossett, who strove to explore new frontiers – even in death.

Posted by Miriam Cherry at 05:29 PM | Comments (0) | TrackBack

Deja Vu Blues

The saying "the more things change, the more they stay the same" is an unfortunate truth when it comes to our voting machines. In 2000, optical scanning machines in certain New Mexican counties counted a straight-party vote without distributing the votes to each of the individual party candidates. For instance, if a voter filled in the oval for a a straight-party Democrat, the scanner would record the ballot as cast but would not allocate votes to Presidential candidate Al Gore and the other Democratic candidates. Fast-forward to 2008: election officials in Sante Fe, New Mexico report that testing of their optical scanning machines revealed that a glitch in the memory cards prevented the tabulating machine from counting the votes in the Presidential, Senate, and House races when a voters marked their ballots indicating that they wanted to vote a straight-party ticket. Had the error not been caught, all of the county's tabulating machines would have been affected. Although the memory cards have been re-burned and fixed in these counties, concerns about the rest of the country's optical scanning machines remain. As e-voting and information security expert Peter Neumann noted during his presentation for Columbia University's Computer Science Distinguished Lecture series held this Monday, we should worry about the accuracy and security of the upcoming elections as it is the computer scientists who say that computers are unsuitable for voting.

Posted by Danielle Citron at 05:19 PM | Comments (2) | TrackBack

Extreme Case of Automation Bias

According to cognitive systems engineering literature, human beings view automated systems as error-resistant. In other words, we trust a computer's answers, even if evidence suggests that we should doubt them. Our automation bias was on full display on Monday night when a New York man drove onto railroad tracks because his GPS told him to do so. Luckily, the man and his passengers escaped injury before the train hit his car. A Metro-North spokesperson told reporters: "You don't turn onto train tracks even if there are little voices in your head telling you to do so. If the GPS told you to drive off a cliff, would you drive off a cliff?" If this train incident and another like it nine months ago provide any guidance, the answer may tragically be yes.

Wikimedia Commons

Posted by Danielle Citron at 04:41 PM | Comments (2) | TrackBack

Rulemaking 2.0

Government officials are increasingly adopting Web 2.0 technologies to connect with citizens. Governors and mayors are blogging and posting videos on You Tube. See here. The State Department has an internal wiki called Diplopedia, which it presented at the Wikipedia conference in Alexandria, Egypt. Perhaps agencies will similarly embrace Web 2.0 platforms to transform their e-Rulemaking efforts, which to date have simply reproduced offline NPRMs and comments online. Rumor has it that the ABA has a committee working on potential e-Rulemaking projects. If the ABA produces a report, it might interest the new administration, but only if online tools would cheaply and effectively bring together stakeholders and the public to discuss proposed agency action.

Posted by Danielle Citron at 02:37 PM | Comments (0) | TrackBack

Flaws in the Election Assistance Commission

Senate Majority Leader Harry Reid recently appointed Barbara Simons to the Election Assistance Commission’s Board of Advisors, the federal body that sets voting technology standards for states that volunteer to be bound by them. As noted e-voting expert and computer scientist Professor Ed Felten explains, Simons is an accomplished computer scientist who will provide badly needed expertise on voting technology to the 37-member board. Before Simons’s appointment, none of the four board seats allocated for “professionals in the field of science and technology” had been filled.

Although appointing Simons is an important step in the right direction, more e-voting experts and technologists must be appointed and now. The EAC’s board is knee-deep in public hearings about the newest version of the Voluntary Voting Standards Guidelines (VVSG). This version of the VVSG—a massive 600 page document—has received serious criticism for its prescription of numerous contested requirements for voting technology that arguably hinder experimentation. The critics’ argument makes a tremendous amount of sense as rapidly-changing technologies are often best guided by standards that can accommodate rapid change. Professor Felten suggests that 10% of the board ought to be reserved for technologists. Even more technologists would be better as a central function of the EAC is the enhance accuracy and security of voting technologies. The majority and minority leaders of the House and Senate who appoint the board members should be seriously considering appointing e-voting experts, such as Professors Felten, Dan Wallach, and Avi Rubin for board membership.

IImage by Joebeone, from Wikicommons, under a CC-BY-2.5 license

Posted by Danielle Citron at 07:45 AM | Comments (1) | TrackBack

What Comes Around Goes Around

Today's New York Times reports that a 68-year-old broker stole over $600,000 from elderly clients and then lost most of his loot in an Internet fraud scheme. The broker received an email from someone claiming to represent his distant relative who had died and left him over eight million dollars. The broker took the bait and wired overseas more than $400,000, apparently believing that the money would aid in the release of the inheritance.

Despite the significant publicity devoted to exposing such scams, consumers continue to fall prey to email fraudsters in significant numbers. Reports suggest that 29% of Internet users have been deceived by spam emails. According to the Sydney Morning Herald, Australians lost $36 million dollars last year to fraudsters claiming affiliations with Nigeria. An intriguing new scam involves fraudsters who set up fake profiles on dating sites, stringing along targets for months before agreeing to meet and then asking for money to help pay for a plane ticket. Some, like the Nigerian High Commission, suggest that the deceived are as guilty as those who ask for money and thus should be subject to arrest as well. That sentiment may not convince many, but in the case of the New York broker who stole his clients' life savings, the email scam is truly just deserts.

Posted by Danielle Citron at 09:21 PM | Comments (4) | TrackBack

Harnessing the Wisdom of Crowds to Spot Spin

According to Business Week, this month marks the birth of Spinspotter, a website that lets users identify and discuss phrases in news stories that smack of bias. The website owner, a former Microsoft executive, will generate income by selling advertisements connected to the bias-infected new stories identified by users. For instance, Toyota might want to hang Prius ads around the phrase "gas guzzler." Or Microsoft and Apple might want to buy ad space next to a news article that deems Windows Vista a "bug-filled failure."

This is an intriguing, and mischevious, combination--users expose media bias (or its gullibility to spin doctors) while spin doctors append ads to win back or capture those cynical eyeballs. Given the site's construction around key phrases, bias accomplished through silence may be missed. So often, media outlets emphasize the positive in politicians and industry such that the lack of criticism reveals a bias worthy of the SpinSpot treatment. But if crowds are indeed wise, they may find a way to highlight those bias-filled silences.

Posted by Danielle Citron at 05:44 PM | Comments (1) | TrackBack

The Right to Have Our Votes Count

In early August, Ohio Secretary of State Jennifer Bruner sued Premier Election Solutions (formerly Diebold), alleging that Premier's e-voting machines lost hundreds of votes cast in Ohio's primary election. At first, Premier blamed the machines' malfunction on conflicts caused by antivirus software from McAfee Inc. Now, Premier has accepted responsibility for the problem. In a letter to Secretary Bruner, Premier's President admitted that logic errors in the machines’ source code caused the machines to lose the votes.

This is a major problem not just for Ohio but for all of the states using Premier’s e-voting machines in November. (Premier is one of the four top vendors of electronic voting machines used by states across the country). Premier has released a product advisory notice, telling users of its e-voting machines running the troubled software how to avoid lost votes. To fix the problem, poll workers have to check the vote-counting servers to see if all memory cards are shown as uploaded. Although the company has submitted “fixed” software for federal certification, the new and improved version will not be certified before the November election.

This November, votes cast on Premier's machines will be counted accurately only if poll workers execute the fix correctly. This seems like a dangerous gamble as poll workers likely do not have technical backgrounds. So the puzzling question remains--why is it so hard to ensure that e-voting machines count our votes accurately? Something is clearly amiss with the testing authorities working in connection with the Election Assistance Commission--they failed identify the logic error. Yet a variety of agencies, such as the NSA and FAA, oversee mission-critical systems that do not fail (at least not often). For instance, airplanes employ software and planes do not fall out of the sky. Perhaps, as Bruce Schneier suggests, voting machines need to undergo the same assurance practices as airplanes do in order to ensure that our votes are counted accurately.

Posted by Danielle Citron at 06:49 AM | Comments (9) | TrackBack

E-Voting in California

Last summer, California’s Secretary of State Debra Bowen investigated the state’s electronic voting machines after allegations that they lost, added, or flipped votes. Teams of computer scientists found that the state’s e-voting systems had major security holes in their design and were vulnerable to attacks. California has now replaced its e-voting machines with the optical scan machines that it used for mail-in voting, only leaving one e-voting machine per precinct to accomodate voters with certain disabilities. Secretary Bowen recently explained to Government Technology that the decision to get rid of the machines came down to the concern that the state had no way to ensure that insiders, such as vendors and election officials, had not tampered with the machines’ software to alter the results. This concern is certainly justified. Party officials often control the administration of elections, and partisanship has long been a driving force in election officials' dirty tricks . (Roy Saltman details these abuses in his comprehensive book on the history of voting machines). Because e-voting machines are black boxes whose actual operation cannot be checked, fraud perpetrated by vendors and election officials would be hidden from view.

Although it seems a colossal waste of the $450 million California counties spent on e-voting hardware and software, democracy will be better served so as long as the optical scan machines provide a more accurate and secure solution. Bowen recently urged Los Angeles to adopt open source e-voting. This is a step in the right direction. Open source code voting machines would be more transparent, accurate, secure, and accountable. They also might be cheaper. Last month's LinuxWorld conference hosted a mock election of open source code voting machines. At a price of $400, the voting machine is a tenth of the cost of proprietary machines because it is simply designed and based on free software. Open Voting Consortium hopes to announce the adoption of its open-source e-voting system by at least one large county in California soon and would like to provide their services to the rest of the state by 2012.

Posted by Danielle Citron at 05:24 PM | Comments (2) | TrackBack

The Greening of Venture Capital

It seems that everyone is going green these days, and venture capital is no exception. VCs are directing lots of money to start-ups developing more efficient solar panels, synthetic ethanols, and other clean technologies. Some see this sector as the next Internet. There is huge market potential and a favorable political climate on both sides of the aisle.

There also appears to be widespread agreement that measures aimed at existing energy sources (like carbon cap-and-trade systems) might be useful in the short term, but that innovations in clean tech are our best long-term solution. President Bush repeatedly mentioned the need for clean technologies in a recent speech on climate change, and Al Gore made headlines when he joined the leading venture capital firm of Kleiner Perkins last November. According to the Financial Times, KP just tripled its set aside for future clean tech investments.

Yet for all the VC dollars being funneled to clean tech, there is a healthy dose of skepticism about its market potential. Some think that the real story here is liberal, rich-enough VCs like KP’s John Doerr using their market power to direct investors’ money to serve an environmental cause regardless of whether the investments will turn a profit.

Am I a clean tech believer or skeptic? Answer below the fold…

When I started paying attention to this issue, I was a skeptic. The model that worked for the Internet doesn’t seem to fit here. First, VCs must exit their investments and return profits to investors after 10-12 years, a pretty quick timeframe. Yet cost-competitiveness in clean tech may be 20-30 years away. Second, while the typical Internet investment may be $5-$10M, for clean tech it can be closer to $100M. This requires more money from investors and a higher price at exit to produce the same returns those investors have come to expect from the Internet. Finally, there may not be enough experienced entrepreneurs entering the clean tech sector. While engineers at IT companies left their jobs to form Internet start-ups, engineers at big energy companies may not be likely candidates to form clean tech start-ups.

On the other hand, some recent developments in the solar field are encouraging. Solar is the front line of clean tech. Until recently, its high costs and low efficiency have been significant impediments to competitiveness. However, Bloo Solar’s Larry Bawden recently told a group of Stanford entrepreneurship students that solar technology has rapidly progressed from silicon panels to thin film panels to super thin films that use 90% less material. Bawden also noted that in the US alone, five times more capital has been poured into solar in the past two years than in the past fifty. Due to great demand for solar panels, mostly from Germany, some solar stocks are performing very well. For instance, Phoenix-based First Solar sold shares for $20 in its 2006 IPO and is now trading at over $250. Also, if US regulations direct or encourage changes in current energy practice (a seemingly inevitable trend), we can expect to see more market opportunities and therefore more clean tech innovation.

Bottom line: While outcomes are uncertain, one thing is clear – VC investments in clean tech will only increase for the foreseeable future. It will be something to watch, with potentially major ramifications for us all.

Posted by Darian Ibrahim at 11:05 AM | Comments (3) | TrackBack

So What's the Silicon Valley End-Game?

Nicholas Carr is one of the leading commentators on internet culture, and his article "Is Google Making Us Stupid?" will influence discussion of its effects for a long time. Here's one conclusion from the piece:

Where does it end? Sergey Brin and Larry Page, the gifted young men who founded Google while pursuing doctoral degrees in computer science at Stanford, speak frequently of their desire to turn their search engine into an artificial intelligence, a HAL-like machine that might be connected directly to our brains. “The ultimate search engine is something as smart as people—or smarter,” Page said in a speech a few years back. “For us, working on search is a way to work on artificial intelligence.” In a 2004 interview with Newsweek, Brin said, “Certainly if you had all the world’s information directly attached to your brain, or an artificial brain that was smarter than your brain, you’d be better off.” . . .

[T]heir easy assumption that we’d all “be better off” if our brains were supplemented, or even replaced, by an artificial intelligence is unsettling. It suggests a belief that intelligence is the output of a mechanical process, a series of discrete steps that can be isolated, measured, and optimized. In Google’s world, the world we enter when we go online, there’s little place for the fuzziness of contemplation. Ambiguity is not an opening for insight but a bug to be fixed. The human brain is just an outdated computer that needs a faster processor and a bigger hard drive.

The Google goals may seem a bit overambitious given AI's failure to master the emotional dimensions of speech recognition and production. Nevertheless, the merger of man and machine remains a tempting trope for new economy superstars, primarily because the very idea of "superhuman intelligence" can become a self-fulfilling prophecy.

What does it mean for a machine to be "smarter" than people? On the positive side, certainly we can "get" the fact that a computer can do millions more computations per second than a human can. But number-crunching or chess-playing are but small aspects of human intelligence. Cashing out the "smarter than human" claim probably involves an inevitably comparative orientation to results. In other words, the machine would have to aid some human in manipulating or beating other humans in competition. So our consideration of machine smarts may already be limited to areas of human competition (as opposed to cooperation)--a telling focus built into the very idea of comparison here.

For example, consider the claims about an "end of theory" (where the most important scientific results reflect brute number-crunching) predicted by Long Tail author Chris Anderson:

At the petabyte scale, information is not a matter of simple three- and four-dimensional taxonomy and order but of dimensionally agnostic statistics. It calls for an entirely different approach, one that requires us to lose the tether of data as something that can be visualized in its totality. It forces us to view data mathematically first and establish a context for it later. For instance, Google conquered the advertising world with nothing more than applied mathematics. It didn't pretend to know anything about the culture and conventions of advertising — it just assumed that better data, with better analytical tools, would win the day. And Google was right.

Google's founding philosophy is that we don't know why this page is better than that one: If the statistics of incoming links say it is, that's good enough. No semantic or causal analysis is required. That's why Google can translate languages without actually "knowing" them (given equal corpus data, Google can translate Klingon into Farsi as easily as it can translate French into German). And why it can match ads to content without any knowledge or assumptions about the ads or the content. . . .

This is a world where massive amounts of data and applied mathematics replace every other tool that might be brought to bear. Out with every theory of human behavior, from linguistics to sociology. Forget taxonomy, ontology, and psychology. Who knows why people do what they do? The point is they do it, and we can track and measure it with unprecedented fidelity. With enough data, the numbers speak for themselves.

In other words, humans are atoms, and the social sciences can be assimilated to the natural sciences. It's hard to believe that this tired assumption, exhaustively debated and refuted in the 1960s and 70s, is au courant again. Social science is always already a tool for certain purposes. Whether we adopt an external perspective on the types of "behind the back" social coordination that computers can detect, or care more about understanding the lifeworld of social actors, depends entirely on what we're trying to accomplish. Is it attempts at manipulation or conversations about meaning? Are we concerned about brute numbers on what most people do, or accounts of why they do it?

Anderson is right that new data mining technology will be increasingly important to winning lawsuits and elections. But when politics becomes more a matter of finding out, say, "how many Democratic-leaning Asian Americans making more than $30,000 live in the Austin, Texas, television market" than actual discussions of policy and its implications, democracy gets replaced with demographic slicing and dicing. Moreover, accounts of why elections are won and lost are notoriously slippery and weak, and it's all too easy to imagine our science-challenged punditocracy celebrating some whiz-bang computer thingy as the new way to win (and thereby entrenching its importance in future elections as others who don't understand the underlying technology nevertheless buy in and assure the spread of the type of discourses it generates.)

So to return to Google: we should never forget that the success of the AI project depends in large part on its authors' ability to convince us of the importance of its results. A society that obsesses over the top Google News results has made those results important--and we are ill-advised to assume the reverse (that the results are obsessed over because they are important) without some narrative account of why the algorithm is superior to, say, the "news judgment" of editors at traditional media. If personalized search ever evolves to the point where someone can type into their gmail "what job should I look for," and gets many relevant results, the searcher should not forget that their very idea of relevance has probably been affected by repeated interactions with the interface and the results themselves. Lastly, as Carr points out (echoing Turkle and Birkerts), we should always remember that tools aren't just adapting to better serve us--in addition, we are adapting in order to better compete in the environment created by tools:

The Net’s influence doesn’t end at the edges of a computer screen, either. As people’s minds become attuned to the crazy quilt of Internet media, traditional media have to adapt to the audience’s new expectations. Television programs add text crawls and pop-up ads, and magazines and newspapers shorten their articles, introduce capsule summaries, and crowd their pages with easy-to-browse info-snippets. When, in March of this year, The New York Times decided to devote the second and third pages of every edition to article abstracts, its design director, Tom Bodkin, explained that the “shortcuts” would give harried readers a quick “taste” of the day’s news, sparing them the “less efficient” method of actually turning the pages and reading the articles. Old media have little choice but to play by the new-media rules.

So what is the end game? Here's a cri de coeur from Jaron Lanier:

There is a real chance that evolutionary psychology, artificial intelligence, Moore's Law fetishizing, and the rest of the package, will catch on in a big way, as big as Freud or Marx did in their times. Or bigger, since these ideas might end up essentially built into the software that runs our society and our lives. If that happens, the ideology of cybernetic totalist intellectuals will be amplified from novelty into a force that could cause suffering for millions of people.

Lanier gives many examples to back up his claim about suffering, but perhaps a sense of numbness and powerlessness in the world he anticipates would be its biggest problem. As data-crunching supplants narrative in crucial areas of our lives, the world takes on increasing opacity. Inscrutable computations become our window on the world. It's no wonder that at this cultural juncture, the wonderful film WALL-E brings back the HAL trope that inspired Carr's article.

Photo Credit: WALL-E.

Posted by Frank Pasquale at 09:59 AM | Comments (1) | TrackBack

Futurology and Academia

Futurology is often derided as a pastime of trendspotters and luftmenschen. But the recent European Patent Office "Scenarios for the Future" report rehabilitated the genre a bit. I've mentioned before that an IP prof has to be a bit of a prognosticator; I'm happy to see Carlin Romano developing the theme (far more eloquently than I could) in this recent review of the Future of Reputation and The Future of the Internet:

Both . . . books, excellent and ultimately upbeat in their separate but related missions, will increase our literacy in their complex yet still intelligible fields. . . ."The best way to predict the future”, the US computer scientist Alan Kay remarked in 1971, “is to invent it.” Pre-emptive description, however, ranks second best. The chief identifying criterion of the future is that it continuously steps back from us, making nothing about it, strictly speaking, true or false.

Both Zittrain and Solove exhibit a common trait of technologically oriented futurists: they tend to assume current values and a wish to preserve them in the face of fresh logistical forces. [Yet] Solove’s examples, such as Jennifer Ringley, the twenty-year-old student who opened her whole life to regular webcam monitoring in 1996 and didn’t shut down until 2004, remind us of truths more explored by Frankfurt School philosophers than American futurists – that technology also changes our values, or at least adjusts them. The iPod, for instance, pressures us to tolerate forms of distraction formerly considered rude, such as the teenager who makes her purchase without removing her earphones.

Both Solove and Zittrain deserve Kierkegaard’s accolade, that to occupy oneself with the future is “an indication of man’s nobility”. Like many “cyberphilosophers”, they are discovering the future in the present with less wonted gloom and doom – and more incisive solutions – than many traditional literary and humanistic pronouncers on the subject.

As someone who has written on the ways new technology can shape values (and believes in the continuing relevance of the Frankfurt School)--I greatly appreciated Romano's sharp review of these two important books.

Posted by Frank Pasquale at 12:58 PM | Comments (1) | TrackBack

Brain Thoughts

As some of you know I sometimes put material here that falls more under the everything category. I like the category. Lawyers do well when they encounter information and ideas outside the world of law. Attention to how the brain works has grown in the law. One might argue that the law requires some conception of what it is to be human, to have intent, to think one way or another.

The video below is from TED. It is Prof. Vilayanur Ramachandran giving the talk "A journey to the center of your mind." He looks at specific conditions affecting the brain and offers some fascinating insights about how the brain functions and at the end a view of creativity that is fascinating. In addition TED delivers again with an excellent example of a good lecture. So watch, learn, and enjoy. (Approx. 24 minutes).

Posted by Deven Desai at 09:14 PM | Comments (1) | TrackBack

Do We Need an Internet Ed. Class?

While I was attending the excellent privacy conference Dan Solove and Chris Hoofnagle organized in D.C. a few days ago, it occurred to me that just as one takes driver’s ed. before being able to drive a car, it might make sense to have a required Internet Education class in middle school. Driving is a key way people engage in the economy, and the Internet, especially email and social networking use, is becoming as essential if not more so. Given all the benefits and problems of the Internet from meeting new people and peer production to unfortunate gossiping and dog poop events, it dawned on me that Internet Ed. might fill a gap that appeared as I listened to various people at the conference.

During the two days, several discussions seemed to turn to the way information placed online can offer tremendous benefits but also pose harms. That idea is not so new. But an underlying theme was that this tension is greater than before. Given the increased reputation problems of the Internet, some folks talked of a more paternal approach to reminding people about privacy (or lack of it) on work computers. The problems of PGP and complex privacy policies as opposed to easy-to-read ones as opposed to heavy opt-in ones and how people perceive the differences posed several paradoxes. In other talks people expressed concerns about cutting off the openness that has made the Internet what it is today. Many questioned just how informed people are about privacy and even if informed how much they care. These ideas should be familiar to those interested in privacy, but so many people sharing ideas about an evolving area of the law and truly seeking to find ways to solve problems made the conference invigorating.

For example, Lauren Gelman is working on how online presence operates under a binary system of public or private yet many think of their online presence as limited essentially to those in one’s circle but with a few new people possibly joining the circle. To me it seems that in some cases people might know that anyone could look at one’s pictures, blogs, MySpace pages etc. In others, some might know that but just not expect that outsiders would look. And some may be quite unaware of the way little things can catch fire and draw attention to what had been a small, personal moment. And then it hit me, why not have Internet Ed.?

Internet Ed. at an early stage might address the possible generation gap in understanding what is privacy and how the Internet works. Like driving, using the Internet can open up tremendous possibilities for fun and for work. Like driving, irresponsible or uninformed Internet use can lead to undesired consequences. Like driving, horror stories of how a picture from a drunken party ruined someone’s job prospects may not deter irresponsible Internet behaviors across the board. Still, by setting out the way in which irresponsible or immature behaviors such as sharing too much information about one’s personal life, not checking about how a site uses personal financial information, and childish rants can affect one’s life, people would have some sense of the possible repercussions of their acts. None of this idea is to suggest that people won’t continue to rant etc. regardless of age. And none of this idea is to suggest that people should act the same way at all times under some sort of enforced code of conduct (although the idea behind sites that choose to establish rules and use their community norms to shape the rules seems well in line with some of the benefits of the Internet). Rather, as a friend noted, the Internet may be similar to tattoos and piercings. In the near future many more will have them and so it will not be as big a deal. Still, in some areas of life such as politics and upper management, one may have to explain that largish hole in one’s ear or the tongue sneaking out of one’s collar towards one’s jaw. So Internet Ed. may help bring home the idea that certain acts may seem great and even be great at the time but others, and even the person who liked the act at the time, may see those moments differently later in life.

Image Source: WikiCommons
Author: strngwrldfrwl
License: Creative Commons Attribution ShareAlike 2.0 License.

Cross-posted at Madisonian

Posted by Deven Desai at 10:13 AM | Comments (4) | TrackBack

E-Books and Their Potential Impact on Book Law

The New York Times reports that Amazon’s Kindle may be the sign of a tipping point for e-books. My previous posts about Kindle have expressed some praise but a fair amount of skepticism too. The device allows for too much control. Zittrain explores this issue as one of perfect enforcement. As my other post noted, the ability to manipulate text at any time poses wild possibilities about what text is and who should control or manipulate it. The Times’ piece points to a perhaps simpler problem: what will happen to the book industry?

E-book device sales are growing at wild rates (doubling and so on) but that is expected in a young industry and distorts the current raw numbers of for example $1 million in e-books compared to $1 billion (see what a difference one letter makes?) for Simon & Schuster. The most interesting thing is that with the advent of Sony eReader and Kindle the upswing in e-books being used may signal a shift in reading habits in general. A few professors I know use only electronic versions of articles, and Sony offers 100 classics preloaded onto its device (A so-called “$199 value” for many public domain titles). Maybe more folks will stop using print. Devices such as iRex’s iLiad (which I saw someone using at Law & Society) seem great: it is a reader with a big screen, AND one can take notes which can be transferred back to one’s computer, AND it has access to Web content. I would love to play with one of these and look forward to finding a store model (It is $600 to $700 so I will not be buying one just yet). So e-book devices have grown and there are threats to publishers because of this shift. But before turning to that question (which will be a separate post), the implications for book sellers is important too.

According to the Times, Bezos asserts that Amazon customers still buy physical books in the same amount as before or in other words e-books are not substitutes for print books. Others in the industry disagree. If ebooks start to substitute for print books, several things are likely to occur.

The music and film industry battles could replay in the print world. One key is that Amazon is pushing a self-publishing route for authors called Digital Text Platform. Unlike the music industry, authors will have a large, central, and highly trafficked site through which to distribute their music. So as David Byrne explained for music, a range of publishing options could operate for print.

Cost of books (or perhaps texts is the correct word) should drop as Amazon leans on publishers to lower rates for e-books. At some point a publisher will have to decide whether to sell direct to consumers, let Amazon be an iTunes for texts, find a different distributor, or a blend of these options will emerge. Regardless, DRM copy control debates will increase in print. Still as some authors have found, giving away an electronic version of one’s work can increase or at least not destroy one’s ability to earn a living by writing. Whether this situation persists once ereaders have better screens and interfaces remains to be seen. Despite Bezos ceding “Anything that lasts 500 years is not easily improved upon, … Books are so good you can’t out-book the book,” his and many others’ goal must be to try and “out-book the book.” Once that happens, the ability to copy books will be huge and some publishers will rally to combat what they see as the only business model that works (note the book publishers/Google battle in this regard) regardless of whether that position is really about the business position that allows the status quo to remain.

On the positive side, instant access to a back-catalogues could be common. Already ereaders allow one to get a copy of a book sold-out in hard copy as apparently happened with Scott McClellan’s What Happened.

So stay tuned. Print may be the last to face the full impact of digital media. It has a chance to avoid the mistakes and adherence to old business models the music and film industry made. Will publishing houses change? Sure. Will authors maybe receive more direct income? Perhaps. Will someone still need to sort or recommend what is a good book? Of course. Will the law get mixed into the fray and yield baffling or obviously just results depending on which group one likes? You bet.

Posted by Deven Desai at 09:54 AM | Comments (5) | TrackBack

Microsoft Gives Up on Book Search

Until last week Google had a competitor of sorts on the book scanning front. Now, however, Microsoft has abandoned its role in the book scanning world. One rather disturbing issue is that the service seems like it will go somewhat dark: "[T]he Live Search Books and Live Search Academic projects … will be taken down next week. Books and scholarly publications will continue to be integrated into our Search results, but not through separate indexes."

As the New York Times notes another one major problem with this shift is that it:

leaves the Internet Archive, the nonprofit digital archive that was paid by Microsoft to scan books, looking for new sources of support. Several major libraries said that they had chosen to work with the Internet Archive rather than with Google, because of restrictions Google placed on the use of the new digital files.

Most likely Siva Vaidhyanathan will have more to say on this one. For now given that the Internet Archive has a nice record of defending against over-reaching searches I hope that the Archive continues to receive support.

The reasons behind Microsoft’s decision are difficult to parse. Is it leaving search? Is it focusing on one sector? Why is it trying to buy Yahoo!? Here is what MS said, “Given the evolution of the Web and our strategy, we believe the next generation of search is about the development of an underlying, sustainable business model for the search engine, consumer and content partner.”

The once mighty (and let’s face it still rather mighty) MS seems to be lost. It is searching for search and other ways to stay relevant. Whether Google will step in and be better remains to be seen. But on this score, MS seems better at supporting open uses of the digitized books. Having everything now go through Google with its suspect policies is less than ideal. In addition, how MS can fail to figure out a business model with all its talent presents an interesting problem: either MS is weak, bloated and has no vision or Google is wasting money to capture everything it can and then leverage it into an advertising, data mining world. Or more than likely it is a bit of both. MS is in that difficult place large companies are bound to encounter and Google is placing bets that mirror Yahoo! Of seven or eight years ago and will face its obsolescence soon enough.

Image: Interior photo of the Bibliotheca Alexandrina in Alexandria, Egypt; WikiCommons

Author: Hajor; License: GNU Free Documentation license, Version 1.2

Posted by Deven Desai at 10:38 AM | Comments (1) | TrackBack

My New Book, Understanding Privacy

I am very happy to announce the publication of my new book, UNDERSTANDING PRIVACY (Harvard University Press, May 2008). There has been a longstanding struggle to understand what "privacy" means and why it is valuable. Professor Arthur Miller once wrote that privacy is "exasperatingly vague and evanescent." In this book, I aim to develop a clear and accessible theory of privacy, one that will provide useful guidance for law and policy. From the book jacket:

Privacy is one of the most important concepts of our time, yet it is also one of the most elusive. As rapidly changing technology makes information more and more available, scholars, activists, and policymakers have struggled to define privacy, with many conceding that the task is virtually impossible.

In this concise and lucid book, Daniel J. Solove offers a comprehensive overview of the difficulties involved in discussions of privacy and ultimately provides a provocative resolution. He argues that no single definition can be workable, but rather that there are multiple forms of privacy, related to one another by family resemblances. His theory bridges cultural differences and addresses historical changes in views on privacy. Drawing on a broad array of interdisciplinary sources, Solove sets forth a framework for understanding privacy that provides clear, practical guidance for engaging with relevant issues.

Understanding Privacy will be an essential introduction to long-standing debates and an invaluable resource for crafting laws and policies about surveillance, data mining, identity theft, state involvement in reproductive and marital decisions, and other pressing contemporary matters concerning privacy.

Here's a brief summary of Understanding Privacy. Chapter 1 (available on SSRN) introduces the basic ideas of the book. Chapter 2 builds upon my article Conceptualizing Privacy, 90 Cal. L. Rev. 1087 (2002), surveying and critiquing existing theories of privacy. Chapter 3 contains an extensive discussion (mostly new material) explaining why I chose the approach toward theorizing privacy that I did, and why I rejected many other potential alternatives. It examines how a theory of privacy should account for cultural and historical variation yet avoid being too local in perspective. This chapter also explores why a theory of privacy should avoid being too general or too contextual. I draw significantly from historical examples to illustrate my points. I also discuss why a theory of privacy shouldn't focus on the nature of the information, the individual's preferences, or reasonable expectations of privacy. Chapter 4 consists of new material discussing the value of privacy. Chapter 5 builds on my article, A Taxonomy of Privacy, 154 U. Pa. L.. Rev. 477 (2006). I've updated the taxonomy in the book, and I've added a lot of new material about how my theory of privacy interfaces not only with US law, but with the privacy law of many other countries. Finally, Chapter 6 consists of new material exploring the consequences and applications of my theory and examining the nature of privacy harms.

Understanding Privacy is much broader than The Digital Person and The Future of Reputation. Whereas these other two books examined specific privacy problems, Understanding Privacy is a general theory of privacy, and I hope it will be relevant and useful in a wide range of issues and debates.

For more information about the book, please visit its website.

Posted by Daniel J. Solove at 12:03 AM | Comments (5) | TrackBack

Revenge of the Bodysnarkers

Author Hannah Seligson coins a new term in her critique of celeb-mocking websites: bodysnarking, which she defines as

the snide, often witty, comments that have become a ubiquitous part of under-30 female conversation. In an age when the digital camera is a must-bring accessory for a night out (how else are you going to upload the pictures to Facebook?), when blogs give everyone with an opinion a venue for comment, and when tabloid culture has made it fine to dissect other women's looks, bodysnarking appears to be a favorite female pastime.

The watershed moment for bodysnarking, Ms. Redd says, came a few years ago when Google introduced its advertising program AdSense. "The program allowed sites to track pages viewed and make ad revenue based on the number of visitors. [Blogger] Perez Hilton realized that nobody cared about his personal shopping trips; they cared when he [mocked mostly female celebrities.]" The masses had spoken: Bodysnarking was now a revenue generator.

As I've noted before, sometimes the technology that "gives the people what they want" serves only to reinforce destructive trends. In addition to Seligson's analysis, I'd say that the rise of the bodysnarkers is an unexpected side effect of the prevalence of plastic surgery. Whereas "defects" in appearance were once largely assumed unavoidable, they can now be "cured." So celebrity's "fans" demand ever more appearance-wise. Given their wealth, whatever can be fixed, must be fixed.

The bodysnarkers may also be reacting to the trend of "faked photos:"

Increasingly, photos for print are enhanced and perfected to an astonishing degree. Not only are moles, acne and subtle facial hair erased from already pretty faces, but retouchers are routinely asked by editors and advertisers to enlarge eyes, trim normal-size ears, fill in hairlines, straighten teeth and lengthen . . . already-narrow necks, waists and legs . . . .

Some of the "10 million women and one million men in the United States who struggle with anorexia and bulimia" turn these impossible standards on themselves. The bodysnarkers choose to reinforce the norms for celebrities. . . and increasingly for others. It's not surprising that some people simply give up in response. As one article notes, "the contrast between the girls on the catwalks and the girls at the mall is creating an atmosphere ripe for binge dieting and the kind of unhealthy eating habits that ultimately result in weight gain, not loss."

Posted by Frank Pasquale at 08:53 AM | Comments (0) | TrackBack

Be A Bird Brain

Just watch. It is a little over ten minutes and fun. Basic premise: some birds you many not like may be rather smart.

Posted by Deven Desai at 11:11 PM | Comments (2) | TrackBack

The Internet Archive Protects Privacy for Libraries

Wired reports that the FBI subpoenaed the Internet Archive and demanded that Brewster Kahle (the Archive’s founder) provide records about one of the library's registered users, asking for the user's name, address and activity on the site. The FBI used a National Security Letter (example) to make the request. As Wired explains this type of letter does not require judge’s review before issuing it and often (almost always) has a gag order “forbidding the recipient from ever speaking of the subpoena, except to a lawyer.” The Archive, EFF, and the ACLU went to court and had the subpoena quashed.

As I argue in Property, Persona, and Preservation, given that our information is more and more technologically mediated, we need better systems to preserve our information. This case raises a related issue of once preserved what can be done with the information. Here, the Archive is preserving the information and then as a library allowing people to use that information. But because of the method of access, the FBI was able to ask for great detail about who looked at what information and when. Julie Cohen’s A Right to Read Anonymously: A Closer Look at "Copyright Management" In Cyberspace offers an explanation as to why the Archive’s win is so important. In short, reading anonymously involves identity of the reader and how we foster “freedom of thought and expression.”

In addition, the Wired article points out that despite the settlement the details of what was sought for example, the “kind of information the target was looking at or uploading -- such as animal rights information or Muslim literature” were kept secret. There may be reason for such secrecy. Still, when Congressional audits show that “hundreds of thousands of NSLs” have been issued, the use has not been tracked, the FBI “can only estimate how many NSLs it has issued,” each time an NSL has been challenged, it has lost (only three times according to the article), but one needs the help of a major public interest law group to fight the subpoena, something is wrong.

One disturbing thing is that no one knows exactly how these NSLs are being used or managed or if they do, they can’t talk about it. That situation reminds me of the private military context where the government also had little sense of how many and under what terms the PMCs were used. In other words, lack of oversight often leads to abuse, but then many know that, right? Another problem is that again like the PMC context, it seems quite difficult to have any sunshine fall upon this process. Why not have a judge look at such a letter? It seems the information is not going anywhere. Quite the opposite; remember it is preserved.

There is more to say on secrecy but for now I recommend Secrecy: The American Experience by Daniel Patrick Moynihan. I think I have recommended it before and probably Patrick O’Donnell has offered other books on the topic (which is always welcome). But as it is on my mind and an excellent look at how secrecy can help and harm a fight against whoever our enemies may be, I offer it again.

Posted by Deven Desai at 12:45 PM | Comments (2) | TrackBack

Computer History Museum and the Babbage Engine

The Computer History Museum “is dedicated to the preservation and celebration of computing history.” A current exhibit is a working version of Charles Babbage’s difference engine which is seen as a 19th Century computer design that was never built for a host of reasons from personality to claims that it could not be built with the technology of the time. The man and his machine are described here. One man, Doron Swade, has not only chronicled Babbage’s life of invention, difficulty in working with other people, and on-going quest for a computing machine but built one of the computing machines using methods available in Babbage’s era.

The machine was built, and the story of Nathan Myhrvold’s desire to have one built for him and shipped to the United States is here. Luckily the machine is on display at the Computer History Museum until May, 2009. Here is a video about the machine and the exhibit.

cross-posted at Madisonian

Posted by Deven Desai at 12:39 PM | Comments (0) | TrackBack

Remember Invisible Ink? How About Vanishing Ink?

CNET reports that PARC (formerly Xerox Parc) the folks who have had a large hand in "laser printing, distributed computing and Ethernet, the graphical user interface (GUI), object-oriented programming, and ubiquitous computing" have invented vanishing ink. For those interested in the environmental side of things, it seems that making ONE SHEET of paper requires "about 204,000 joules" or "about the same amount of power required to run a 60-watt light bulb for an hour." Recycling the paper requires "about 114,000 joules." Printing on either new or recycled paper takes about another 2,000 joules.

If PARC's technology is successful, the ink fades out in 16 to 24 hours. One can then reuse the paper. If one wants to run the paper through the printer before the ink has vanished, the printer can erase it. Here's the key: erasing and printing requires about 1,000 joules; so half the energy of printing in general. Using the vanishing ink to print on blank paper requires only 100 joules.

So think about the menus, memos, maps, etc. that we use and then discard or recycle depending on whether a recycle bin is available. Now the paper can be reused. The energy cost of using obtaining a usable, blank paper is incurred once. And if one waits to print, the energy cost is even less. There is, however, a possible catch here: "The paper and the printer will be a little bit more expensive than their conventional counterparts." So what is a little bit? Who knows? Given how expensive printing is right now this whole thing could simply shift money from energy to toner.

Still there are some things about PARC's development that make it interesting from a law and policy perspective as well. PARC's success stories are famous in part because PARC was not so great at making money on them (that GUI you use is one of them). Still, Xerox's committment to a think tank where people ponder the future and pursue basic science "to create 'the architecture of information'" seems to have paid off. In its current incarnation (it is now a whooly owned subsidiary of Xerox), PARC seems to be a bit more focused on licensing and the like. Yet, it had tremendous success before that focus was in place. So are the incentives that are often offered to explain innovation really the full story? PARC's history seems to be an example of a more realistic approach. The business managers at Xerox set up a place which fostered an increase in the number of possible innovations. In some cases, they capitalized on them and in some they did not.

Research purely directed at capitalizing on an invention is limited research. It can of course yield great returns. Still in the words of William Goldman, "Nobody knows anything."

Goldman said that to explain the lie that movie executives know what will be a hit. So too for truly ground breaking or "think outside the box" work. One might argue that the innovator who runs against the current cool way of thinking and doing will naturally be missed by the mainstream because the work is so new that many don't see or understand the work for what it is. (I think Kuhn goes into this idea but someone correct me if I am wrong please). As Frischmann and Lemley have investigated in their piece Spillovers (Polk Wagner has looked at the idea as well and both draw on Kenneth Arrow's work), we should think about creating environments that generate spillovers.

So PARC has recently focused on clean tech and energy. This move did not occur in a vaccuum. Society indicated an interest in energy and the environment. PARC has begun to think about the issue and will of course try to make some money from its work. Still, it may be that PARC will stay with its system of setting a general goal and seeing where the scientists go with it. If Xerox can make money in house it will. If Xerox is better off licensing the technology, it will do that. The question is what will happen if the technology has no clear, immediate purpose? Will it rot somewhere? Will PARC tag it with a patent and try and stop the next Apple from taking something that PARC and/or Xerox don't know how to use? That move would be a way to address the problem of not seeing where the technology applies (remember nobody knows anything), but in a way that says its our ball and no gets to play. All of which brings me the question of time. Perhaps it is the best lever for intellectual property. By keeping the duration of an IP right short, one can at least ensure that works are available for others to play with. Let enough people tinker and something really great may come out like Wikipedia. Keep information locked down, and the innovative cycle is more likely to be stunted. Put differently, as the rest of the world enters the innovation game, maintaining a more nimble system that generates large amounts of creation may be just as, if not more, important than the intellectual property claims that will go with that creation.

Image: Aerial Shot of Silicon Valley and surrounding area
Source: WikiCommons

cross-posted at Madisonian

Posted by Deven Desai at 12:25 PM | Comments (5) | TrackBack

. . . and I feel fine

How should the law deal with the end of the world?

A set of recent NYT articles discusses a lawsuit filed to stop the (possible) end of the world. Apparently, there is a very, very remote chance that the newest particle accelerator will create

a tiny black hole, which could eat the Earth. Or it could spit out something called a “strangelet” that would convert our planet to a shrunken dense dead lump of something called “strange matter.”

Yikes! And so there is a lawsuit seeking to enjoin use of the accelerator, at least until an environmental impact study (!) is completed. And with that, the fate of the universe suddenly rests in the hands of lawyers and judges. It sounds like a bad script that tries to marry Armageddon with Law and Order:

"Will beautiful attorney Lisa and her trusty paralegal sidekick Jake get the papers filed in time? Will cranky judge Hornblatt grant the TRO that saves the world? Find out next Friday, right after the series premiere of Survivor: Law School Edition."

And how exactly does the law analyze these sorts of claims, anyway? It strikes me that law is not particularly well-equipped to handle claims of infinite destruction. For instance:

-When can a party get a TRO to prevent an act that would cause the end of the universe?

Well, they've got to show irreparable harm. Presumably, the end of the universe is always irreparable harm.

-When does a company have to disclose the possibility of the end of the universe in its filings?

Well, if it's future or speculative information, we apply Basic v. Levinson's probability/magnitude test. The probability may be small, even infinitessimal. But the magnitude of the potential harm? Infinite. I guess you always disclose it.

(10-K's everywhere will now include the line, "There is a very, very, very small chance that something the Board does will inadvertently cause the end of the universe.")

-And how would a court apply the Hand formula, for instance, in assessing whether a party should have taken better precautions to prevent the universe from being destroyed?

Burden = Probability x Loss.

P may be low, but L is really, really high. Does this mean that parties always have a burden to take reasonable steps to prevent the end of the universe?

Probably.

But then, law typically gives damages, which are backward-looking. And if the universe has been destroyed . . . well, good luck finding a court in which to bring your claim.

Plus, all your evidence is probably destroyed.

(Image source: Wikicommons)

Posted by Kaimipono D. Wenger at 12:22 PM | Comments (5) | TrackBack