Lex Ferenda

The possible (mis)use of US federal law designed to deal with hacking for the purpose of the (admittedly tragic) Megan Meier/Lori Drew case is scary. In short, after a high-profile situation where a young person committed suicide after what appears to be a pattern of harassment conducted via MySpace, it emerged that the mother of a ‘friend’ of the deceased had written many of the messages. Charges didn’t follow in the first instance (state law), but after some time, charges were brought under federal law, including the Computer Fraud and Abuse Act (CFAA) as amended, which in effect makes it illegal to access any computer ‘without authorization’; the logic goes that because MySpace requires you to give correct information and not be abusive, not following the conditions means that you aren’t authorised.

The idea that violation of the terms of use of a website is in itself a crime raises all sorts of possibilities that are almost too far-reaching to speculate about without seeming a little unhinged! It’s similar to, yet even more threatening than, the development of knee-jerk “criminal trespass” laws that blur the line between conduct in public places and private places and have been used against peaceful protesters with abandon. I find some tragic humour in the fact that private censorship by hosts, no matter how irrational, is seemingly beyond the scope of the courts (being a private matter supposedly for contract alone) yet when you ‘break’ that ‘contract’, it’s such an offence against the public that the criminal law should be involved. (Never mind the fact that a lot of those now criminal-law-carrying terms are beyond boilerplate!)

We’ve talked about the weasel words (or misuse of words!) of authorised computer access on these pages before - in the context of wifi sharing. I have a bad feeling about all of this.

More from Eric Goldman, Susan Crawford, Wired and Peter Black.

My supervisor Dr. Eoin O’Dell, who blogs at cearta.ie, is hosting this week’s Blawg Review, in honour of Bloomsday. Having had the pleasure to write it twice, most recently on St. Patrick’s Day, I’m looking forward to seeing how he manages to out-do me with tenuous links, bad jokes and obscure references. (He is an expert in all three).

If you’d like to join the carnival, suggest posts for the review here. And if you’d like to host a future Blawg Review, then the Ed. would very much like to hear from you.

You wait and then two come along at once…

We’re talking about the Department of Communciations, Energy & Natural Resources (DCENR; formerly also Marine hence the still-in-use Web address of DCMNR) in Ireland.

1. The Department posts the outcomes of and releases documents pertaining to Freedom of Information (FOI) requests. There’s even one from me in there, if you search hard enough. Anyway, they published a bundle of documents released in response to Damien Mulley’s request, which are quite interesting. Damien has posted some of the most interesting bits, and the Irish Times ran a story too.

One interesting paragraph - interesting for how it illustrates the difficulties that the Department has had with its broadband programme, though also interesting to see a document that was probably never intended to see public light - is this one. It’s taken from an email between two senior civil servants in the Department, speaking about a person who has been employed as an stagiare (intern) about to complete her term of work; one of them wants to hire as a consultant to continue work on the National Broadband Scheme and writes to the other:

“I would like to find some way of retaining her and may have to break procurement rules in order to do so. Given the dire situation, I feel I have no other option. I’m not inclined to seek permission from HR for this proposal and I’m unlikely to get it. I’d rather face the consequences after the NBS is up and running” (source: page 30 of this PDF)

It’s easy, indeed to respect the determination of the author to ‘get things done’ and cut through what is presumably nasty paperwork, though of course the trade union in the Department rightly raised legitimate concerns about the process, which are all described here, and the paperwork is there for a reason. I don’t think this is a legality/illegality issue but it’s certainly an awkward one for all concerned.

Just as a sidenote to all this, yet again we see our ‘Freedom’ of ‘Information’ system in action - the big black marker was in full action, and Damien was charged over €100 for this (the fee varies based on the cost of digging out the information). A friend of mine made a request to a third level institution some years ago and was quoted over €1000 for the information (he withdrew the request rather than pay it). Alongside this, there is a fee to make a request and a fee to make an appeal - and, perversely, if you win your appeal, you don’t get your money back - it is not a refundable deposit but a penalty charge that the wronged party must pay for the incorrect decision of the decision-maker at first instance. The Information Commissioner, Emily O’Reilly, criticises the fee-related aspects of FOI in this great speech from earlier this year here. A Private Members’s Bill (PMB) from Joan Burton (Labour) (here) to reverse the legislation that introduced these punitive charges will come before the Oireachtas shortly. In the meantime, Damien deserves our thanks not just for his spending on a charge that shouldn’t exist, but his persistence and his well-constructed requests.

2. Not needing FOI for this one (yet): Michele Neylon, who is involved in the ISP Association of Ireland (ISPAI) publishes the correspondence between the ISPAI and the Department regarding the proposed law on data retention, which Digital Rights Ireland and others are doing their best to oppose. The Minister replied by saying that as a different Minister (Justice) has responsibility for incorporating the relevant bit of European law into Irish law (transposition of the directive by way of SI, for those who care about such thing), he “has no function in this matter”. All the PDFs are on Michele’s post.

Note that the ISPAI didn’t ask if the Minister had a “function” in the matter - they asked to meet him to discuss how the legislation would have an impact on the Internet industry in Ireland. As the Minister responsible for communications, one would expect that he might be in the slightest bit interested. An Opposition TD (member of parliament) has no “function” in all sorts of things, but that doesn’t stop them hearing from concerned individuals, groups, businesses, trade unions and lobbyists. Furthermore, as we saw during discussions on defamation and privacy legislation, it’s not just the responsible Minister (again Justice) that has an interest in the Dept. of Justice’s legislative programme in or outside Cabinet - surely the Minister for Communications should at least be aware of the concerns of the communications industry, so that he or his staff can raise those issues in appropriate fora? And let’s not begin to talk about the nonsense that our politicians do, like cutting ribbons on off-licences and turning up at everything from a christening to a funeral if it’s in their constituency.

I enjoyed the overage of the dispute over Google’s desire to keep its privacy policy off the front page of its website by Michael Zimmer in particular. He introduced the issues, compared the visibility of various search engine privacy-policy links, observed additional legal issues and parsed Google’s response and even did a mock-up on what a compliant site would look like.

More from the New York Times’ “Bits” blog here (in general) and here (on Californian privacy law), and various angry responses summarised by Cnet here.

Late to the plate on this one, too. Still plenty of time to submit what you’ve got, though. GIKIII takes place at the Oxford Internet Institute on September 24/25 - be there or be an equiangular equilateral convex polygon.

All the info is here. Not sure if I’ll be there this year, though I’ve been to the first two (here’s the 2007 report) and very much recommend that you go.

Our esteemed organisers say:

GikIII, a two day workshop on the intersections between law, technology and popular culture, will be held on September 24-25, 2008 in Oxford, England. GikII is so cutting edge that it is the nano-blade of workshops, so expect all sorts of challenging papers, tenuous legal connections, l33t powerpoint and keynote skillz, uber-geekery, and a healthy dose of lolcatz. Previous GikIIs explored Facebook privacy settings before privacy had become fashionable again, and looked at the pressing legal issues in subjects as varied as Harry Potter, killer robots, anime, fandom, virtual property and tattoos. All papers exploring the interaction between “geek” subjects and the law are welcome, but emphasis on popular culture is always favoured. This year’s workshop will also have a special session which explores the topics of complexity, networks and regulation.

Send your abstract of no more than 500 words to ian.brown@oii.ox.ac.uk, l.edwards@soton.ac.uk or a.guadamuz@ed.ac.uk by July 15th.

I’ve had some trouble finding the time to blog this month, but have a whole pile of half-finished posts that I’ll be unleashing over the next few days. Hope you enjoy them.

The Internet’s design relies on few mechanisms of central control. This allows new services to be introduced, and new destinations to come online, without any vetting or blocking by either private incumbents or public authorities. However, because we cannot easily measure the network and the character of the activity on it, we cannot easily assess and deal with threats from bad code without laborious cooperation among a limited group of security software vendors. Experiments need measurement, and the future of the generative Net may depend on a wider circle of users able to grasp the basics of what is going on within their machines and between their machines and the network. There is a need for new technologies and social structures that allow users to work creatively and collaboratively to understand what’s happening on their network — how it is impacting them, and how they are impacting it. This session introduces a cluster of technologies that seek to leverage the presence of millions of distributed PCs around the world to diagnose and improve PC health and network connectivity and empower users to understand and affect the future of the Internet.

Zittrain is the facilitator. We’re going to talk about projects. Yes, down-to-earth real stuff. He mentions the OnStar discussion from his book (chapter 5), which he said was particularly challenging to write because of the fears that emerge from the ‘perfect enforcement’ issues.

First mention of Psiphon, woohoo! (Note from Daithí - If you are in a position to contribute to this project, please do). And there are various similar projects. We can class them as part of a ‘netizenship’ agenda, and there is plenty of potential to build on this. Zittrain admits that the name Herdict is the worst name ever and appeals for help with this. A group of Berkman fellows, interns and friends are introduced.

They are trying to hold off the moment where the system is gamed/falsified/blocked. But this itself will be a mark of success, recognition that you’re worth going after.

Zittrain is showing a mockup of what the website (blank for now), will look like. There’s a colour-coded map of the world showing what blocking is taking place at that moment. Users can press a browser button when they are blocked and that sends an anonymous message saying what was blocked and (roughly) where. Builds on the idea of amIblockedornot idea. Interesting idea - to avoid the site being a repository for pornography etc, they will run the results (of blocked sites) through Google SafeSearch too.

Brilliant idea - how about using these ideas to get a comparative idea of “how good my network connection is” - this can relate to consumer rights issues and even network neutrality.

What if the site itself gets blocked?

We had a discussion (spurred by a post from me about different types of censorship) over how to deal with the problem that the site would be a list of porn sites (as mentioned above). Zittrain’s view is that this is an imperfect solution and that the goal is to make information available as much as possible. Rob Faris points out that the work on SafeSearch itself was done by Zittrain himself, but quite some years ago.

This version is about *web* blocking and not more general Internet issues, such as Skype. Swapping now to talk about PC health - this is something that installs and runs in system tray, looks for certain ’signs’ (although exactly what has yet to be defined). Some very interesting stats will emerge, particular when crossreferenced with basic user data (experience, type of machine, etc). Again, this sounds extremely interesting and with all sorts of applications beyond the straightforward functions. Some further discussion on this too, and a late diversion into opening the concept of netizenship beyond these applications…

And that’s the last of the live blogging from the Berkman @ 10 Conference, The Future of the Internet. This evening the inaugural Berkman Award is being made, although I’ll be booing watching the Red Sox at Fenway Park instead. I hope that you enjoyed the updates, and thanks for the comments!

This is a real gallery of big names; Terry Fisher is in the chair and Yochai Benkler and Tim Wu are speaking. Not only that, but sitting in front of me are Chris Marsden (the UK expert; see his work here)) and Motohiro Tsuchiya (the Japanese expert!), and Maria Gomez Rodriguez (completing a fantastic PhD on net neutrality in the EU; see an example here) is alongside us.

Benkler - This is a “story” - if you wanted competition as you moved from incumbents - you needed to allow to share their facilities, unbundle, etc - but the big question was what to do with cable. Would you have the same ‘open access’ approach? It certainly seemed like this was going to happen. But in the early years of the century, indications of a shift by the FCC from requiring this sort of competition on each wire (i.e. within cable) to competition between wires/modes (i.e. a cable connection v DSL). There are many policies that have been passed since then that need to be revised.

Do we need to look at infrastructure that is public? (municipal etc) Should we be focusing on user-owned infrastructure? (wireless mess, ‘create your own local loop’)? So you’ll have multiple pipelines - competition between genuine physical facilities?

Wu said that there are four issues :

1. Can service providers demand payment for access? The current position is that the customer pays the ISP and eBay pays the service provider but once you’re on, you’re on. Can an ISP apply fast lane / ‘payola’ / etc? In a telephony context, this is an ‘access fee’, which is a regulated price (i.e. long distance). Many of the proposals have some form of ban on charging.

2. What is ‘reasonable network management’? When can the carrier delay/block/”mess with” the connection between two parties for the purposes of managing bandwidth. Reads the FCC hearing at Harvard where unilateral approaches are not accepted in this domain.

3. If there is some sort of net neutrality norm, what is the form of this? Is it an ad hoc system whereby the FCC does something about things it doesn’t like? We are laying the groundwork for that right now. It would remain a concept that you’re not supposed to transgress. Hearings and threat, not rules and processes. This can be debated from the point of view of good administrative governance.

4. “Hollywood”. What side are the content industries on? In some ways, the studio is like eBay, in that they want to reach the users without difficulty. They don’t want to get engaged with another set of powerful gatekeepers. On the other hand, the idea of paying more for advantage, that’s the traditional way of doing things anyway. This year, there will be a struggle in the policy community for gaining the allegiance of this crowd…

Fisher - is mostly a consumer of the neutrality issue rather than an author. There seem to be six types of NN:

a - Content Neutrality
b - Application Neutrality
c - Sender Neutrality
d - Toll Free
e - Sustain Separation of the Layers of the Internet
f - Truth in Advertising

The argument then is allow discrimination vs curbing discrimination.

He now has a matrix of such on the screen but it’s moving far too fast to take down.

Opening for discussion now; hitting publish and, again as this is a parallel session, liveblogging the rest.

***

Benkler is critical of the 700MHz auction - there was an opportunity for genuine open access and it was missed. What the system is trying to do is to ensure that there are not too many changes.

Question - is there a need for prioritisation (first responders, telemedicine, etc) - Wu agrees, but suggests that private networks designed for specific purposes is the solution. This is already present through VPNs, to some extent. “The public internet should be kept a public place, as free from discrimination as possible”….there is an important issue over things like 911 but “don’t contaminate the public Internet”.

From the floor, Chris Marsden says that much of the practice is very little to do with the standard practices of regulators, it’s to do with things like privacy, spam, homeland security etc, and there’s very little communication between that and the traditional regulatory world.

In response to another question, Benkler ruminates on the idea of whether “cable” is different to “the Internet”. In response, Wu is drawing crazy clouds and arrows on the board, which I hope he’ll explain in a moment.

Susie Lindsay (who now works for Bell Canada, a very interesting player in the NN debate in Canada) talks about “good discrimination” (traffic shaping, etc). I think she accepts/acknowledges what Bell is doing, which has be the most straightforward statement of a complex issue. Full marks to her for explaining honestly and briefly the dilemna that they and others find themselves in. More coverage of this particular issue at Michael Geist’s blog.

Very provocative statement by Wu - compare with employment law, having competition alone does not mean that you need to abandon non-discrimination law in employment. And now he’s going to have a little go at the Chicago School.

This was a very, very enjoyable session, although I found the focus on the FCC and US law a little frustrating at times, as the issues here benefit not just from looking at international law (actions in one state have an impact in another, the enterprises are organised multinationally, does trade law count, etc) but also at comparative law. The NN debate will benefit from both.

John Palfrey and Urs Gasser are presenting a session on “Digital Natives”, which is a research project they have been engaged in for some time. The book that has emerged from their research, Born Digital, is complete and will be published this summer.

If you want to follow at home (no stream for this bit), the best way might be the Question Tool, where the ‘myths’ that are at the heart of their discussion are included and questioned. Find it here. We in the room (the overwhelming majority of whom are using Macs…not just digital natives but digital connoisseurs, according to sc1olist on the conference IRC channel), are using this page too.

I will update this post with notes at frequent intervals in the true live-blogging spirit.

Below: liveblogging, updated approx every two-three minutes

Gasser - the generation we are talking about, born around or after 1980. We are making some assumptions - that they have access to the Internet, that they know how to use the technology. So it’s a segment of the population, not an entire generation. We’re studying *how* they are using the Internet.

The layers: descriptive (along with other researchers around the world, describing what’s happening and in particular what has changed); analytical; evaluative (e.g. what new opportunities emerge? but also challenges?); prescriptive

(Room is filling up here - pretty close to capacity - and an interesting spread across the natives and non-natives!)

Urs now talking about methodology - so far, there’s been quite a focus on case studies but there is a trend towards serious empirical work. This is a challenge for descriptive layer in particular. For analysis, an important thing is figuring out the relationship with theory. For evaluative, the question is that of values - particular the problem where “not everyone shares the same values” in the global Internet.

Now looking @ methodology in more detail (Miriam Simun from the projects). They’ve tried to ensure spread of things like socio-economic background etc.

Now scanning through the myths, which you can find on the question tool, so check them out. Alternatively, there’s a list here. I think they should have presented this like a Letterman Top Ten

John Palfrey is on his feet, reminiscing about making the classroom we’re in (Langdell North) wired, and members of faculty turning them off again. Should a classroom be on the network while teaching a class? Differing views from the participants. Issues raised - respect? concentration? teaching skills? theories on pedagogy?

JP Rangaswami talks about the use of technology in an environment where there is peer pressure, based on his work in the UK.

Indeed, this conversation has continued. One thing that interests me is that I am debating the issues in the backchannel and the issues being raised are quite different, which is a nice case study of the value of simultaneous multimodal ‘class’ participation. I believe the discussion there is being archived and posted somewhere and will link to it when it’s there here it is, thanks Alex!

Another issue that has come up from a few different people is the value of having “screen down time” - i.e. telling people to ‘pay attention’ or is there more to it than that?

Coming towards the end now. Palfrey recommends the MacArthur Foundation / MIT Press series on Digital Media and Learning, which is available through open access online.

Parallel sessions on “open” starting the day today; I’m at “The Language Of Openness“:

Nothing matters more than what the Net is. Yet when we call it a “space” or a “stage” or “pipes,” we frame it with metaphors that yield very different purposes, laws and business models—also different futures. What different laws and regulation do we get by framing the Net in terms of real estate (”domains,” “sites,” “commons”), transport (”packets,” “content,” “pipes”) or theater (”audience,” “experience”)? How do these different frames guide debate over net neutrality, open infrastructure, governance, regulation, public good and business opportunity? Are there other ways of framing the Net that are more useful?

Doc Searls introduces the session by talking about ‘framing’ and how this affects our debates, and David Weinberger mentioned George Lakoff (I’ve read Don’t Think Of An Elephant, one of the best books on politics in recent years, despite being very short). For the Internet, we talk about space and we talk about pages/publishing/etc.

A good concrete example is the difficulty in talking about net neutrality in the US Congress, where the language of telecommunications legislation is based around transportation. In general, the metaphors that we apply can have differing impacts, as they can make it easier to get support/buy-in but the choice of words can/may have an impact on what the end product is, as once you’ve adopted the frame, it’s hard to move away from it.

Provocative question from Judith Donath (who is the third panelist)- is contributing to open source a gift? This leads to an interesting exchange on the framing of open source itself (especially as compared with free software!). From the floor, Lewis Hyde wonders whether discussions of (re)enclosure (i.e. James Boyle) are helpful? He draws a distinction between commons and public domain; the former is a collectively managed resource while the latter is not collectively managed (and thus available for appropriation).

Towards the end, from someone I didn’t know - “what did we call an ecosystem before we had the word ecosystem”…this means that we need new words for the Internet and for the commons, we may not have that frame yet.