The Wrap Session – 2003 July 4

(entry last updated: 2003-07-04 18:38:18)

Charlie will facilitate; the group will respond

Charlie: Can we think about this week in self-reflective terms in the hopes that we can crystallize a question. It’s been an interesting week; I started out to the left of Terry, and I have ended it as an RIAA helper. So I have a question for Terry: The tension that I found myself in has to do with this position withrespect to digital music and I found myself particularly faced with this tension as I considered Terry’s proposal. Would we like to see a digital music world in which people buy their music through iTunes and like delivery services? If we’re not going to displace the copyright system, it’s looking like iTunes is the direction music distribution will take. Would Terry say no? – because his system is better. Or, if yes – will an iTune-like model thrive for as long as free music is available? The split between free and for-pay exists; how will the business model evolve in the face of this split. A balance? And, if so, what sort of balance and how will it be maintained?

Is the fight between copyright and the Net going to lead to the death of one or the other? And can we risk the crash that will come, whoever crashes?

Terry: A brief response. This book I’m writing has two parts – how we got to the problem; and then how we get out. I have three possible routes out, all of which are better than where we are now, while the one we saw in class is my most extreme set of changes. So spoofing and other technological tricks can lead to a host of iTunes variants. The bottom line would be a lot better than we have now, but it would have three disadvantages – 1) you would retain the current music industry structure/concentration of the industry; 2) it preserves the distortions that emerge with pricing above marginal cost – a deadweight loss to society; 3) the iTunes marketing systems is likely to generate some sort of constraints upon the product – usability, copying. It would fail to fully realize the opportunity of the internet.

Now, you might think it’s a nice picture, but the problems in the interim means that the legislative reactions will limit the internet as a whole. But, I believe that there are win-wins in this area that will preserve the structures of the internet that we wish to preserve.

Terry, got a question to pose to one of the others? Terry: Here’s a question that puzzles me – a zoned internet or an unzoned internet. Should we promote/acquiese to it, or oppose it?

Z: It’s a question to me too – zoning seems antithetical to the net, but the jurisdiction/constitutional issues suggest that governments ought to be able to exert the controls that we associate with governments and their instruments. Zoning breaks the libertarian gotcha of the internet; for myself, since most of the internet is speech, I think it’s better to have more unfettered speech than not.

It is a hard question, leading to my question to Larry: what’s the right political process through with we should make the decisions about the sort of internet that we want? You’ve tried a bunch of things, up to a constitutional convention for the internet – what should we be using to effect change.

Larry: That’s a great question. The thing that’s surprised me in the last year is the extent to which we have come to realize that all significant politics are things that are broadcast – w/o CBS or the NYTimes, it didn’t really happen/isn’t really valid.

The blog space seems to have inverted that notion; the notion of a centralized space within which things happen politically is just a bad idea – it need to be distributed and happening at the individual level – exposure to the responsibility of making good and bad arguments, and responding in this space. A conversation from the bottom up on these perspectives, increasing the appreciation of the implications of these issues and to see an invigorated process in the political arena.

Larry’s question: Someone ask Yochai a question.

Q: Europe is grappling with the question of copyright and databases. Could you comment on database production under copyright?

Yochai: Mid-1990s the EU creates IP in raw data – 5 years earlier, the Supreme Court says facts cannot be protected by copyright. Since then, the database industry has petitioned Congress repeatedly for this same right. The basic economics of database protection are similar to those of copyright; the costs to scientific research would be particularly large – a strong reason to resist. The reality of the strong database market in the US in the face of the EU decision suggests that there isn’t a strong economic advantage as the EU thought when they offered the protection – the advantage has not resulted in a change in the position of the EU industry in databases

I mentioned it here as one of the many components of the enclosure movement in information. The fallacy that stronger property rights is needed in this area is gaining increasing momentum in the political process, and this is one instance among many in which there is hope – it continues to fail in the US. moreover, it’s a possible example of why the enclosure movement is an error.

Q: One thing that hasn’t really been addressed but is really a concern has been the fact that we are forcing groups to blatantly ignore the law – and we are forcing them into becoming criminals, rather than achieving interdiction and eroding real belief in the law – a culture of lawlessness. Comments?

Larry: There are many contexts in which the Prohibition mentality leads to people who routinely break the law. Yet we rarely account for the consequences of this sort of lawless culture. I would say that this is what Fred was talking about when he spoke of the collateral damage of this policies.

This view leads to a need for a stronger consideration of the things these laws are actually accomplishing, rather than what they are claimed to achieve, and to ask ourselves if the consequences are worth the aims?

Charlie: Teaching the law is pretty hard when everyone in your class is a lawbreaker, especially when you are trying to instill the ethics underlying as well as the appreciation of the law.

Terry: An anecdote – in the summer of 2000, when Napster had been declared illegal although not yet shut down. I gave a talk in Brazil to a set of lawyers and judges, on music. I begin to describe the system – how many people here have used Napster? and 50% raised their hands. Testament to the speed of deployment and the prevalence in a room full of judges and lawyers

At the time the Betamax case was contested, two Supreme Court justices owned VCRs

Q: For Yochai, can you speak to the political effect of the internet – how the internet contributes to the regional alliances; how do you relate your cuture democracy to political mobilization? Particularly for poor neighborhoods?

Yochai: There are three questions in your first question. The first is the digital divide question; the question of when the necessary precondition for capturing any of the benefits of the internet in political space requires capital expenditure to provide access, does this exclude the poor. Second, does decentralized internetworking provide opportunities for political mobilization across geography – an easy question, yes – the marches against the Iraq war/smartmobs/etc. So, the first question returns, into giving access to this instrument.

The digital divide means, particularly for developing economies, that with new instruments it should be possible to overcome this barrier.

The third problem is the extent to which the internet fragments local communities in favor of others, in other geographic contexts (I think I’m off track here).

Charlie: Here’s something different – what were your academic interests that led you into this area?

Jonathan: It was the internet that brought me into the law. At age 12, responsible for moderating a forum at Compuserve (TI-994a Forum) and having so much fun, exchanging ideas, etc. that I realized that how these communities justly governed themselves let me to the law

Larry: Julian Dibbell’s The Rape in Cyberspace – the power of words to create damage – a place where people don’t really understand their politics. Teaching in this area meant that people had to think rather than parrot what they were suypposed to say

Yochai: Market structures and freedom were my concern; I had been looking in the past, and I discovered that it was actually going on now in cyberspace

Terry: Property rights have been my interest; the subject that implicated power; I have been teaching it for 19 years. Then gradually, the impulse to follow power led me to IP (for the last 10 years) and the internet became the hot topic in internet. Less than Charlie, Jonathan and probably Larry, this is really not my zone – I do IP.

Charlie: I took a course on the Univac in 1958; then not much until Jonathan turned up in a class of mine, and I had a grant to buy Mac Quadras which were then internetworked for a class project. The use of the internet as a teaching context.

Z: Two groups – one group generally asks is the Internet going to be a US centric space;

Charlie: Over here I’ve got some – Who’s going to take your ideas and run with them/ Is it possible to govern the internet? Is the US going to run the internet?

Larry: The fact it that we are already neing governed – the question is whether we are going to take responsible/reflective consideration of the nature of this governence.

Q: Is there a possiblity of a global internet law?

Larry: it’s possible, we may find some common principles, but there are real distinctions among locations that mean we will never see a true global law

Z: I worry that the reason so much of the Internet was a success because the key decisions took place in the back rooms in a different context. As it becomes a public game, the true amateurs will be driven out (as in those who do it for the love of it), leaving us in a muddle of competing and disruptive interests.

Larry: Would you rather developing countries used free software or pirated MS software? Of course, freedom means using free, while tying to network effects suggests that Microsoft will want you to pirate (although they can’t acknowledge this publicly)

Yochai: What are the politics of this set of movements? Terry, your work clearly looks progressive – economic based directives toward freedom; Yochai and Larry vacillate into and out of libertarian perspectives.

My own perspective is that I am a pragmatist. Given the historical facts, the law, the technology, what can be woven together to find a way to a certain moral vision; the political methods, however, are not so sharply defined in this area. It’s a context specific set of operational mechanics – whatever works

Terry: This is a crucial theme, and I have a set of related questions here. What is the role of the state in this? I agree with Yochai that pragmatism is what is necessary.

“The market assigns value to IP objects. How does Terry’s mechanism accomodate this equity issue?” The narrow answer is that the mechanism is based on use, so it works on popularity.

There is an analytical error here, too. Copyright system is a massive intervention of government power into the way that people would otherwise behave. This means that the market is grossly manipulated by the state – it is not a natural instrument. So it’s not a choice between non-state natural markets and a bureaucracy – both regimes are government interventions.

Larry: A smaller question – your regime is like the current regime – payment on the number of times something is consumed. But isn’t it odd that all songs cost 99 cents; aren’t the Beatles worth more than Zittrain’s – what about setting up this sort of market?

Terry: All these markets are imperfect in that respect

Larry: Why wouldn’t you do it if you could avoid the transactions costs?

Terry: It appears that this is unneccessary today – already the current industry could accomplish this sort of thing, meaning that there is no reason to do this – temporal price discriminate is not the same as discrimination among different products.

Elizabeth: I’ve been buying new and used CDs on eBay; which would seem to yield this sort of market.

Terry: I don’t know much about this, but I would imagine that there is another economic factor in play here – scarcity. That generator of inequality would have an effect. It would be interesting to examine the behavior in this market over time.

Charlie: A question – Could the iTunes model be used to bring forward out of print works? My answer would be that this might be the basis for a two tiered market – where out of print works appear in the free nets, and the current material appears in the for pay market.

Larry: Let’s try compulsory licenses – suppose there is a compulsory rate for out of print work. It might generate a couple of different things – a market in recordings (like the Deadhead tapes) as well as a set of incentives to lead to rereleases in the face of demand

Z: Reflect upon the academic enterprize in which you are working – is it really the case that the internet is different? And I note that there is a lot of advocacy in this presentation. Will internet law be here in the future?

Larry: in the 1940s there were two farmers who were near an air force base whose chickens kept dying of startlement when the planes flew over. In order to try to deal with this, they sought to bring suit using the claim of trespass. Justice Douglas, in the Supreme Court, wipes this right out in a single paragraph – “common sense revolts” at this idea of ownership

What attracts me is that the adjustment to new technologies in this space is being queered by the efforts of strong interests – a lind of land grab. It’s necessary to point out that this is going on – so that a decision can be more sensibly be made in the political sphere.

Z: So is that why your life is an Oliver Stone conspiracy movie?

Charlie: I believe that internet law is a real thing – there are many things going on here that are all prevasive, and the integrative nature of this arena means that there is real changes that have to be considered carefully and in the face of real potential novelty

Z: For now – it may all be settled in 15 years

Yochai: I’m not sure that’s an important question. When asked what I do, I give a generic meta description that I believe will always remain a problem – the internet is a context within which we work now.

Terry: Thanks to Robyn and Larry for everything. This is a collaborative program that has evolved over the last 5 incarnations of the program – but the degree of change between the last one and this one is a very large one, and Larry is responsible for that transition – a reflection of his perspective and structure that he sees. Thanks, again!


A few pictures

(entry last updated: 2003-07-04 21:37:47)

Sorry – editing over SSH is a little painful, so I only offer up these three bits from last night (I promise to use thumbnails when I get home).

Yochai’s Session – Speech

(entry last updated: 2003-07-04 15:40:11)

An overview and a mapping of the thoughts this week onto ideas of freedom and morality. Here’s a leading pamphleteer of the 17th century – an icon of freedom in the print era who effected political ideas that led to parliamentary democracy in the UK. He represents an ideal of freedom of speech, exercised through the use of a liberating technology – print. I’m going to use him as a central illustration of the idea of freedom of speech and political freedom – as well as the question of how much and anarcy – John Littler? Littlebon? Littleburn?

So, law and speech through formal censorship. By identifying certain things that people want to say but government’s don’t like – In the US, smut; in europe Nazism; in other places, political opposition.

Now, law is not the only way we regulate speech. Consider Lady Chatterly’s Lover – an appropriate subject of an order to confiscate because the book was obscene. Since the early 1970s, obscenity has become something that has to be really bad; and only then is it bannable. However, there are plenty of things that are distressing to some, without being obscenity.

Other modalities come to use – brown paper covers, or location of the material in hard to reach places of a store. Not a legal hurdle, but one nevertheless. Add to this, norms – the shame of having to ask where to find the smut in the store. Lastly, the market: here we see pervasive violence, but not a lot of sex/nudity – what forms of material is allowed to have in generally available media is somewhat influenced by markets (advertising,etc)

Radio doesn’t require a brown label. Thus, radio has been cleaned in law – FCC v Pacifica Radio – a nonprofit station aired a social critique by George Carlin (the seven dirty words skit). This was considered reason enough to impose a penalty by the FCC, and it was upheld by the FCC – plays the seven words skit – actually a different skit, but equally relevant.

The Supreme Court upheld on the basis of the need to protect children. A management of public cultural spaces to clean up things

Leading eventually to the Time cyberporn cover – the Marty Rimm scare. Leading to the CDA; struck down. The Children Online Protection Act; ambiguous results so far; and filtering requirements (CIPA).

One of the responses at the basic political level could potentially have been a claim that the problem is an exaggreration. However, the communication revolution has made things more visible than they used to be. It is, in fact, pretty easy to find these things.

Let’s return to the Nuremberg files; this is speech; this is debate. It’s an easy system, for those with all sorts of views, to create political communities; to undertake actions. (It’s ugly and horrifying as well)

So – is this a good thing?

A response: the simplistic answer is that this should be permitted; it’s distasteful to many, yet free speech is a necessary thing, even with its ugliness. I like that we can publish what we like, offensive or not.

Another: We are getting back to the point from the last session. I think that being able to present Nazism should be allowed; but this Nuremberg stuff is a different thing – this is intimidation – the threat of action is clear – and it’s taking away someone else’s rights to do what they want.

A distinction is drawn between a photo of a woman entering an identifiable car versus a graphic photo of an aborted fetus and the 9/11 attack, claiming a connection between the two. The first is not speech – the second is free speech to defend.

Yochai: The Nuremberg Files site lost, and what they did is to change the context of the data – the data is not changed. It’s the context within which the data is presented that seems to be the thing that leads to a distinction in our minds. Is this still a good technololgy?

Andrew: We have to acknowledge the dark side of technology developments – they exist and we have to consider them in the cost/benefit balance

Another: This picture of the woman entering her car; this is not political or commercial speech – it’s something else.

Some allusions to the texas anti-sodomy law

Yochai: A very heavy weight given to the privacy of the home, and the privacy of individual decision making – this would support deciding to get an abortion, but little tothe issue of the exploitation of the notion of public spaces as we see here.

One of the CDA fallouts was the introduction of the notion of an age barrier, via the need for credit card information. What does this do? First, it regulates access, limiting it to adults. Second, if you are a free site, setting up this sort of check is expensive, so it would lead to a market barrier to operating. Third, it increases the opportunity for social surveillance, putting you in a circumstance where the norms of the community might be brought to bear onto you.

Let’s turn to technology as an instrument of control. Maybe we should use law to refine the technology in a way that we can regulate in this space. So, we get the V-chip, CIPA filter requirements, and filtering in Saudi Arabia, China and elsewhere. The Supreme Court says filters are not an onerous burden, so it’s ok. Let;s hear from someone who’s learned a lot about this.

Jonathan: So i have already spokenn some about this; lets talk in more detail. The site is the ISP that sits astride the pipeline that connects the country to the rest of the internet. The site is somewhat open about the doing of this – use of SmartFilter, meaning that they don’t know what the entire list is. What they did, was give them two weeks to get a proxy server in SA so he could experience the SA browser experience. See also as another place to recommend sites to filter.

The Saudi Arabia game is more about appearance rather than actual; China is more the opposite (more bite rather than bark)

Chia does something different – individual routers are programmed to drop packets to specific sites. This is both more sophisticated and more crude because they must block an entire WWW page. So, for example, they blocked – diverted to other sites.

An uproar – so now what happens is that searches that they don’t like means that there is a sudden loss of connection for about 20 minutes. Does it work – not perfectly, but small fences can constrain large mammals.

Yochai: So, we reach the point of asking how much freedom do we want – a political discussion

There are other ways of regulation – so called benign regulation that is looking at some other objective, but ends up restricting speech. Copyright, for example, is a limit on speech, in the interest of getting more creative speech. Trademark, another restriction – certain expression cannot be used (e.g., “freedom of expression” is purportedly trademarked). Spectrum allocation can also be a restriction on speech; standard setting is also a kind of restriction – we agree to speak in a certain fashion.

These benign regulation cascade throughout the space we have been working this week. In the Market: derivative works, low power FM, NET act. Laws that are aimed at markets. For example: Here’s a site called the Free Republic news forum – a slashdot for a certain political bent. Seems democratic

(Larry Injects the TM listing for Freedom of Expression – owned by Kembrew McLeod – in the form of a typed drawing)

The NYTimes and the Washington Post say that this site infringed copyright when the text of article were reproduced in the “slashdot-like” article – and won. So the argument is that the archived story of the Washington Post is likely to be worth more than giving a group the opportunity to construct a discussion around the article.

Q: How is this different than a movie class that can’t afford to pay the ticket price to see a new movie?

A good question: the courts have found in a similar case that fair use does not mean you get a chance to make the most perfect copy – copying video crudely is potentially ok, but grabbing an object in commerce is not allowed.

Our complicated metaphor for IP makes this a difficult line to draw.

So, we get market-forcing law. For example, low power FM. The technical staff of the FCC determined that, because of the nature of the current technology, it was possible to add a large number of low power FM broadcasting without a loss to the commercial broadcasters. A local content channel for FM, essentially. Within a few months, there were a thousand applications to set up these small stations. Congress passed an act that set standards that made it expensive to do, plus took away the FCC ability to act in this specific area. So, again, not exactly censorship, but with consequences that limit freedom of speech.

We also get technology-forcing law as well. The DMCA, eBook, 2600; we also have the CBDTPA/Fritz chip; Hatch’s vigilante capitalism; and HDTV as the primary appliance instead of an OWL node/broadband deployment.

So, we get to see more pixels, but in only a limited number of contexts – vs. getting more sources.

So we get pushback. From the market: WiFi, KaZAA, Google, and IBM & Red Hat. Pushback from the technology: WiFI, KaZaA, WWW, Freenet,…

So, what are the values at stake? (1) Political Democratic Discourse. There have been critques of mass media and its effects on democracy for a long time – especially market driven media. One effect can be called the Berlusconi effect – power through aggregation of media; the other the Baywatch effect – better to make money than to support political discourse. The money effect on this industry, means that there is a cycle of money and political access that leads to a possible “Bloomberg effect” – campaign finance issues.

What effect does the internet have upon this situation? (Worf’s “we missed” -and- Dangerous Squid’s Teletubbies/Dubya bit)

The “fuck the draft” – one man’s vulgarity is another man’s lyric (Harlin, US supreme court)

With the internet, an open and neutral network, you get other perspectives – – a platform for a kind of transparency in political dialog that is otherwise unavailable in the commercial media.

Anther area – cultural democracy/semiotic democracy. How does the structure of the means with which we construct our culture effect the content of that culture – the Phantom Edit story. (Gone with the Clownz?) (The pornographic anime version of star wars, with some sort of remix/reversioning – it didn’t go over any better this year than last, IMHO)

So, Terry – cultural democracy?

Terry: So, it’s awkward to use this limited clip as a premise for semiotic democracy – ugly, unfunny and offensive – yet it is suggestive of the good things that I would like to see go forward.

A firm will be distributing soon a combination of hardware, software and metadata that will allow the user to modify the content on the fly – set the sex, violence, language sliders and then the content is edited on the fly – you are making a derivative work, on your own, in the framework of this technology. A kind of semiotic democracy – a way to influence. And there are much more powerful implications there.

The Phantom Edit, a VHS tape that was essentially an extraction of Jarjar and a limiting of the childish feature of the infact Darth Vader. This should now be possible to do within the context of the technology suggested above.

IOW, giving people a chance for creative engagement in this sort of effort, improves our condition. Moreover, it increases the diversity of the available cultural object, enriching the cultural space. Finally, it leads to a kind of collective cultural development, leadig perhaps to a shared cultural construction.

Yochai: Possibility and Challenge

This is a moment of both possibility amd challenge. Industrialization of information production has become a steady theme of our development. This increases the capital cost of participation in this activity. The internet technology has reversed something of this trend – now the desktop is all it takes to participate. So, we get radical decentralization of information and content creation and delivery. Moreover, there has been an increase in non-market behavior as the basis for a number of actions in the information and content arena. And we get a freedom from many regimes of both private and public censorship.

Given these developemnts, will we run with it, or will we retreat from it? A key opportunity is the development and sustenance of an information commons – a core cluster of resources that can be employed by everyone as a basis for conducting communication in effective ways.

We’ve talked about the physical layer – but less about the notion of a government funded interstate highway system in this space; at a logical layer, we spoke of the need to change some laws, as well as promoting more freedom in software; and at the content layer we need to stop the enclosure movement; and we need to develop an intellectual structure that helps us better to defend these development by being able to articulate more clearly what is at stake. (Missed the infrastructure point) And we need to work on the development of social practices that support this. And finally, what are the politics of freedom in the commons? How does the necessary political thinking emerge to support this so that we can develop this progress more thoroughly.


Independence Day @ ILaw!

(entry last updated: 2003-07-04 13:43:31)

Happy July 4th! Today’s topic, appropriately, is privacy – particularly since we have learned that there are 5 cameras in this classroom, and it’s not clear who/what is connected to them.

Everyone is trickling in, at a little slower rate than usual – it’s clear that everyone had a good time last night, and the early arrivers got to hear Charlie reveal another secret of Jonathan’s past – his dancing partner at the Brazil ILaw.

It looks like Jonathan will be starting us off today, after some announcements from Larry. A lunch barbecue today; and the wrap up today is about your questions. Surveys will be available and we hope you can take time to fill them out.

Jonathan and Molly Van Houweling will be speaking about privacy.

Molly and I have been talking about how to do this, in that it’s something people feel strongly about it, but when you get into it it becomes “a big pile of moosh.” (Term of art? <G>)

So, the topic is going to be why we don’t like teaching about privacy.

So, what is privacy – what do we mean?

We start with things that we want control over… …collection of personal data; …use of personal data; …personal environment; …vital personal decisions. (Note a return to notions of control, and who has it)

Classical concerns are the government, industry and other people, all of whom might collect information or undertake actions that challenge these domains of control. This generates a matrix of issues. So we get some special topics within that framework. For example, the state’s involvement in birth control issues; identity theft. But we have special ones that we want to tackle in this session; and then we’ll move onto other issues in the discussion.

So, a classic issue – the government collecting information about you. First, Carnivore – tool for essentially wiretapping at ISPs. It’s not just collecting communications, but also filtering on specific characteristics under a court order.

The issue is that Carnivore grabs everything first, then spits out the ones that meet the filters set in the court order. So, it “reads” everything; rather than those specified elements. Now there are some legal remedies, potentially.

Suppose, for example, the filter erroneously belches out your message; a fourth amendment violation, yet no easy way to prosecure. Kyllo is a case looking at surveillance via thermal imaging of a suspected marijuana grower. At the Supreme Court, this was found to be a 4th amendment violation,

In Scalia’s opinion (the majority), this was agreed to be an excludable search because the technology was not generally available, meaning it was a special tool of loaw enforcement – but, as technology evolves, that means that the characteristics of and limitations on legitimate searches will change.

So, we see a see-sawing of the technology/counter-technology fight in this area, just as we see in copyright/circumvention/etc. The maintenance of an equilibrium, upset by technology, leads to a strange kind of cat and mouse game, where first one side, then another, cries “foul.”

A term of art – “reasonable expectation of privacy” – a context that is always in motion. This term emerged to articulate notions of privacy outside the home, where the notion of privacy starts. Kyllo now means that technology can erode notions of privacy in your home, a tradition domain of presumptive privacy.

Chris Kelly: chief privacy officer of the firm Excite! speaks up.

This feedback loop between our individual relations and the rules of law; the law is usually the instrument of response to violations of privacy, leading to exclusion of the information at trial. When it’s a question of individuals and governments, other recovery is necessary.

So, let’s speak of cookies. As we have been told, cookies are a technical solution to the fact that HTTP is a stateless protocol – there is no memory from event to event. A cookie is a data deposit on a client machine by the server. The server can put any datum onto that machine in the form of a cookie, labeled as belonging to this particualr server (breadcrumbs left in the woods, for example; or blazes on a trail). Up to this point, no particular privacy problem.

Now, let’s look at how cookies are actually used. Say, I go to a dog page at I get a cookie that says, visited a dog site. Then I go somewhere else, where I might fill out a form; then somewhere else where I query some specific things. And my dog preferences seem to come along with me. A so called cookie consortia agrees to pool cookies (or DoubleClick, a banner ad company, compiles information about me as to run into DoubleClick banners on all my sites). So, we get targeted ads – a privacy problem?

Other tracking instruments are possible – IP addresses or MAC addresses. And thus your computer gets indentity

It still may not be a problem; can’t I turn off cookies, or wipe them? Sites are designed to throw cookies, so the advisory dialogs are inescapable and unending.

There are two ways this is attacked – the US way and the European way. The US approach is to say that it’s all about consent and your expectations are set – so the FTC focus is on the privacy policy is publicized, and the consumer makes the choice to visit the site or not. Leading to the opt-in vs. the opt-out debate.

We see that privacy is terribly important, unless I can get frequent flier miles <G> This seems to indicate that there’s nothing really troubling here.

Maybe not – here’s a possible story. A surfer goes to a www site and considers a record to buy. By suggesting it to someone else, he goes to the site and finds that the same album is offered at a different price. Your mouse droppings make it possible for data miners to develop a stunningly focused description of your preferences and your behavior. Is this a problem?

Not obviously. Seems like a good thing. But with a certain degree of information, noxious discrimination in treatment might emerge.

What about the idea of selling my privacy? Like selling a kidney?

Let’s try this. The IRS doesn’t like tax cheats; but don’t want to spend money. So they did a statistical analysis of tax returns and the incidence of tax cheating, leading to the DIF formula. This formula becomes the basis for deciding whether or not to audit. This formula was requested under the Freedom of Information Act, prevented from release as a challenge to national security.

Total Information Awareness; with the collection of a host of innocuous data, combined with analysis and pattern data, judgments can be made – and a result emerges that cannot be explained. So someone can be damned, without recourse to questions of due process/probably cause – how did this happen is a question that cannot exactly be answered. A Minority Report world. Moreover, a host of things we have said shouldn’t be a basis for decisions (gender, age, race, etc.) suddenly are taken into consideration.

What are the alternatives? Investigation by individuals have their own problems.

Information wants to be free, right? So privacy becomes a counter example to Barlow’s thesis – some information should not be free.

A comment raises my thought – it’s the fact that I can interrogate and query a process, rather than rely upon a computer program based on statistics – the due process issues are the thing that is troubling.

Jonathan points out – what if we just use the tool as a screen, and then we go on to do a formal investigation using traditional methods.

And, we are fundamentally confronted with a politically determined problem – how to balance the desires for certain government functions (e.g., security) in exchange for giving up privacy.

So what tools might be used: (a) stop the collection; (b) limit the uses of data; (c) audit the uses of the data – the sort of rights in the EU Data Directive. So people have the opportunity to check, but most people don’t.

Q: Transparency is the thing I care about; as long as I can verify that they are doing what they ought to be doing, it’s not a problem. Z: So what if the government asked you to fill out a form about everything? A: Well, no. But reasonable collection is OK with me.

Ray: I’m concerned about Big Brother, but it’s little brother – recourse and accountability for data collection by firms. Without that, there’s no reason to expect that industry will do the right thing in this space.

Commenter: People seem to be willing to give up amazing things – 30% are willing to give out their physical location in exchange for a free sandwich. If this is the situation, is it possible that the idea of privacy insurance could develop?

Z: The theory of these sorts of markets are the ability to construct a financial/risk instrument that can compensate for certain kinds of losses. We might be able to set up identity theft insurance, since we can quantify the costs; but loss of privacy? What’s the monetary damage to be compensated – how to set it.

Molly: OK – I’m getting a little more scared. But there’s more out there still. Let’s talk about RFID chips.

Z: The next cookies – how the internet is becoming part of the real world. RFID are devices that function as physical cookies. Jonathan has a RFID in his dog – the dog runs away often – and now the dog can be recovered. If it’s good enough for a dog, isn’t it ok for my child? Why not RFID my kid – we have them in razor blade packages now, for example. So, now I can point an antenna at a home and I can ID the products that are in there. Or, as you walk into a car dealership, they can scan your clothes RFIDs and know whether it’s Armani or Gap slacks – and make appropriate judgments.

Comment: It seems like this is Napster inside out – Fred von Lohmann as the Scott McNealy of file sharing. Is there a creative commons license functional equivalent.

Let’s talk about P3P – a technical tool for expressing your personal privacy preferences – a standardized set of of questions that allow you to specify your privacy preferences – and it will screen your WWW access activities. So this helps with the opt-in/opt-out transaction costs. But I can still elect to give up my data in dribs and drabs. Plus, P3P is just a way of automating the contract – enforcement is still an issue,

Larry: There is also a part of the story where Microsoft plays the good guy. IE6 rolled P3P into the browser, with the default being to reject cookies by default from wites without P3P facility – leading to a dramatic increase in WWW sites that implement P3P – so tech plus the market power does offer up a little more facility.

One more topic – so now I should worry about my own failings and my accidental mouse droppings. What about the things that I need to make available, like my name.

Like the Nuremberg Files – a WWW site that includes names, addresses, and other public listings, all of people with whom this group has differences. A host of noxious things, done in public

Note that the Nuremberg prosecution was done under the theory of limiting threats, rather than a privacy case.

Two other cases: the SpamHaus project – list of know spam operations – the Nuremberg files for spammers. (; the NC sex offender and public protection registry. Convicted offenders, released after doing their time, are identified, located and characterized.

Comment: Don’t forget web bugs – little graphics in pages to track cetain kinds of actions without the user knowing

Comment: Maybe we have started in the wrong place – shouldn’t the first thing be a discussion of what we mean by privacy – what is the policy objective that we are trying to devise instruments to serve.
Molly: This is why this is hard – the issues are both wide and deep, and articulation of all these elements is terribly complicating.

Comment: This has shown why this is complex and difficult. It seems like being given a choice of what to give up makes a difference. The difference between the US and EU approaches is that ALL personal data in the EU is presumptively regulates in the EU, while that is not the case on the US – only certain data is treated that way. It makes for a huge difference, particularly the regulatory overhang

Lisa Rein: A clarification on IE6 and P3P – yes it did raise the bar; the bad news is that it was a platform-specific implementation that other programs have a hard time working with it.

Z: Note, this is the state of things after 10 years of internet technology. And already the world of privacy has dramatically changes, as has been out perception of our visibility in the world. So far, the law has proven to be unweildy in this space, and the technology that is being given to consumers is not actually facilitating the objectives that we would expect that they are being set up to help.

Molly: the 9/11 dimension has changed the notion of what represents reasonable expectations of privacy – another key domain


2003 July 4

(entry last updated: 2003-07-04 11:59:41)

A blast was had (literally and figuratively) at the social event tonight. The event was held at the Stanford Lively Arts Event: The Preservation Hall Jazz Band Plus Fireworks. The conference attendees got to sit up front at tables, where we were served a buffet dinner, plus drinks. Jim Flower was happy to see that the vegetable concentration in this meal was lower than some over the past week.

The band was not out for more than 10 minutes before there was a complete breakdown of the social order <G> as the conference attendees began to dance off to the side of the stage – leading to the influx of a host of others into the dancing area. There was general dancing, and a conga line for at least one song. What the band made of it I cannot say, but in the early stages they spent quite a lot of time watching the dancers instead of the crowd.

Although the flash on my digital camera died, I did get some good pictures and, if I can find someone to read my 80 mm CDs (I can’t figure out how my PowerBook is supposed to be able to do it), I’ll get some posted tomorrow/today.

Until then, a few links and then I’m off to bed.

  • From Slashdot: the Xbox mods have been published and the suits have been threatened: Xbox Linux Made Possible Without a Modchip

  • A propos of the Jason Matusow discussion: Microsoft Eases Licensing Under Pressure From U.S. [pdf]

    Microsoft’s antitrust troubles may be mostly behind it. Yet in its 32 pages, the legal filing provides a glimpse of the extent to which the company’s business remains under the watchful scrutiny of federal and state antitrust authorities. At the same time, the document points to Microsoft’s efforts to use licensing terms to limit the access of rivals to its technology.

    The focus of much of the tension between the government and Microsoft, as described in the compliance status report, was over the seemingly arcane software that enables Windows desktop operating systems to share data and work smoothly with the Windows programs that run big server computers.

    The report in question comes from this page: Joint Status Report on Microsoft’s Compliance with the Final Judgments; U.S. dissatisfied with Microsoft licenses

    As part of the settlement, Microsoft had promised to license he code, or protocols, on “reasonable and non-discriminatory” terms.

    However, Microsoft rivals, who opposed the settlement, have since complained to the department that the licensing terms are anything but reasonable.