September 2009

Skype, Child Safety & the Worse Case Scenario Mentality

by on September 18, 2009 · 21 comments

LenoreSkenazyI absolutely adore Lenore Skenazy. As I pointed out in my review of her brilliant new book, Free-Range Kids: Giving Our Children the Freedom We Had Without Going Nuts with Worry, she is rare voice of sanity in modern debates about parenting and child safety issues.  If you are a hyper-concerned helicopter parent who constantly obsesses about keeping your kids “safe” from the world around them, then I beg you to read her book and her outstanding blog of the same name.  It will completely change the way you look at the world and how your go about raising your kids.  It is that good.

Skenazy address and debunks a wide variety of “child safety” myths in her book, including many from the online child safety front that I spend so much time dealing with in my work.  In one of her recent posts, she addresses the rather silly concerns of one elementary school teacher who wanted an author of children’s books to speak to her fourth grade class using Skype.  However, “since the school and the author are 1000 miles apart, the author suggested using the video-chat service Skype. The teacher said no — not unless he could come up with a way the kids could see HIM, but not vice versa.”  When Skenazy pointed out how this concern was likely greatly overblown, one commenter on her site responded: “The teacher is likely (legitimately) concerned that the kids’ faces could end up plastered all over the Internet.”  Skenazy responds to that notion with a rant worthy of a George Carlin monologue, albeit without as much swearing, mind you:

Excuse me? Legitimately concerned that (1) A children’s author she has invited will turn around and take photos of her class and post them without permission?  That that’s what men do all the time? Can’t trust ‘em for a second? (2) That boring photos of a 4th grade class are so exciting that they will take the Internet by storm? (Because, of course, there are so few photos of school children available.) (3) That someone will see this particular photo, obsessively focus on the kid in the third row and move heaven and earth to come find this child and stalk, rape or kill him/her? And that we must keep Third Row Kid safe at all costs?

These are insane fantasies! Perfect, text-book examples of the way so many of us now jump to the absolutely WORST CASE SCENARIO and then work backward from it, preventing something harmless or even wonderful from ever taking place just in case. Using this method of risk calculation, a teacher could politely request that from now on, no one serve her students lunch at school. Because what if one of the lunch ladies is secretly a psychopath and she is intent on murdering the kids one by one? It COULD happen, right? Let’s be prepared for the ABSOLUTE WORST! After all, we’re only thinking about the good of the children!

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Excellent Radio Berkman Podcast on Anonymity, Free Speech & Defamation

by on September 17, 2009 · 7 comments

A terrific Radio Berkman podcast this week on “Adventures in Anonymity” featuring Sam Bayard, a fellow at the Harvard Berkman Center and the Assistant Director of the Berkman Center’s Citizen Media Law Project.  Along with host Daniel Dennis Jones, Bayard discusses the intersection of anonymity, free speech, defamation law, privacy, and more.  In addition to sorting through the sticky legal and ethical issues, their discussion includes some really excellent historical perspectives on anonymous speech.  They also get into the recent “skank” blogger case and the AutoAdmit case.  I discussed those cases and some of these issues more generally in these essays:

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Online Privacy and Regulation by Default

by on September 17, 2009 · 17 comments

My colleague Jim Harper and I have been having a friendly internal argument about Internet privacy regulation that strikes me as having potential implications for other contexts, so I thought I might as well pick it up here in case it’s of interest to anyone else. Unsurprisingly, neither of us are particularly sanguine about elaborate regulatory schemes—and I’m sympathetic to the general tenor of his recent post on the topic. But unlike Jim, as I recently wrote here, I can think of two rules that might be appropriate: A notice requirement that says third-party trackers must provide a link to an ordinary-language explanation of what information is being collected, and for what purpose, combined with a clear rule making those stated privacy policies enforceable in court. Jim regards this as paternalistic meddling with online markets; I regard it as establishing the conditions for the smooth functioning of a market. What do those differences come down to?

First, a question of expectations. Jim thinks it’s unreasonable for people to expect any privacy in information they “release” publicly—and when he’s talking about messages posted to public fora or Facebook pages, that’s certainly right. But it’s not always right, and as we navigate the Internet our computers can be coaxed into “releasing” information in ways that are far from transparent to the ordinary user. Consider this analogy. You go to the mall to buy some jeans; you’re out in public and clearly in plain view of many other people—most of whom, in this day and age, are probably carrying cameras built into their cell phones. You can hardly complain about being observed, and possibly caught on camera, as you make your way to the store. But what about when you make your way to the changing room at The Gap to try on those jeans? If the management has placed an unobtrusive camera behind a mirror to catch shoplifters, can the law require that the store post a sign informing you that you’re being taped in a location and context where—even though it’s someone else’s property—most people would expect privacy? Current U.S. law does, and really it’s just one special case of the law laying down default rules to stabilize expectations.  I think Jim sees the reasonable expectation in the online context as “everything is potentially monitored and archived all the time, unless you’ve explicitly been warned otherwise.” Empirically, this is not what most people expect—though they might begin to as a result of a notice requirement. Continue reading →

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Terrific Anthologies: “Best Technology Writing” Books

by on September 16, 2009 · 16 comments

Wow, I’m obsessed with tech policy books, so I’m really not sure how I missed these until now, but these are some absolutely terrific anthologies of the best technology writing for each of the past 4 years.  I just picked up copies of all four of them but then found out the contents of the 2006, 2007 & 2008 editions can all be read online!  Click on the covers for a rundown of all the essays and articles included in each edition.  Great stuff from some very talented writers.

Best Technology Writing 2006 Best Technology Writing 2007 Best Technology Writing 2008 Best Technology Writing 2009

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FTC Announces Roundtables on “Evolving Consumer Privacy Issues”

by on September 15, 2009 · 3 comments

FTC buildingThe Federal Trade Commission (FTC) has just announced it will be hosting:

a series of day-long public roundtable discussions to explore the privacy challenges posed by the vast array of 21st century technology and business practices that collect and use consumer data.” Such practices include social networking, cloud computing, online behavioral advertising, mobile marketing, and the collection and use of information by retailers, data brokers, third-party applications, and other diverse businesses. The goal of the roundtables is to determine how best to protect consumer privacy while supporting beneficial uses of the information and technological innovation. The roundtable discussions will consider the risks and benefits of information collection and use in online and offline contexts, consumer expectations surrounding various information management practices, and the adequacy of existing legal and self-regulatory regimes to address privacy interests.

The first of these roundtables will be held on December 7, 2009 at the FTC Conference Center in Washington, D.C. Additional information can be found here.

I’m sure my colleague Berin Szoka will have much more to say about this in coming days and weeks — and I very much hope the FTC will invite him in to testify — but, for now, I just want to reiterate the three key challenges we have been posing again and again and again and again in all our work on this subject:

  1. Identify the harm or market failure that requires government intervention.
  2. Prove that there is no less restrictive alternative to regulation.
  3. Explain how the benefits of regulation outweigh its costs.

I hope those issues are front and center at these workshops and we get some firm answers because the dangers of breaking the very few Internet business models that actually work is a very steep price to pay for the conjectural harms bandied about by some privacy zealots.

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You’d Have to Be Smoking Dope to Believe the Zittrain-Lessig Thesis

by on September 15, 2009 · 19 comments

Up in SmokeOver the past couple of years here, I have relentlessly hammered Harvard’s dynamic duo of digital doom, Jonathan Zittrain (see 1, 2, 3, 4, 5, 6) and Lawrence Lessig (see 1, 2, 3), for their extraordinarily gloomy predictions about the Internet creating a world of “perfect control.”  In the hyper-pessimistic Lessig-Zittrain view of things, cyberspace is perpetually haunted by the specter of nefarious corporate schemers out to suffocate innovation, screw consumers, and quash dissent.  In the 1990s, Lessig’s big-bad-bogeyman was AOL.  Today, Zittrain casts Apple in the lead role of Cyber-Big Brother.  The problem with their thesis? In a word: Reality.  As Tim Lee has pointed out before, “Lessig’s specific predictions in Code turned out to be… spectacularly wrong”:

Lessig was absolutely convinced that a system of robust user authentication would put an end to the Internet’s free-wheeling, decentralized nature. Not only has that not happened, but I suspect that few would seriously defend Lessig’s specific prediction will come to pass.

Absolutely correct, and the same is true of the fears and predictions Zittrain tosses around in The Future of the Internet.  And yet, as we saw most recently during my debate with Lessig and Zittrain over at Cato Unbound upon the occasion of the 10th anniversary of the publication Code, neither of them have relented one bit. Indeed, they have actually been escalating their morose rhetoric recently.

The fact that Zittrain casts Apple as the central villain in his drama is particularly interesting because millions upon millions of people absolutely love the company and its amazingly innovative products — even if I’m not one of them.  And there is absolutely no way Zittrain can continue to sell us this story of Apple quashing innovation when, in just one year’s time, there were 1.5 Billion iPhone Store downloads of over 65,000 free and paid apps by consumers in 77 countries.  I mean, seriously, is there any application you cannot get for the iPhone these days?

Apparently not, because over at the Wall Street Journal “Digits” blog,  Andrew LaVallee writes of the latest innovative application to pop up in the Apple iPhone Store, iPot — a tool to help you find dope shops in California!!

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The Irony of Mandatory Filtering in China vs. the U.S.

by on September 15, 2009 · 11 comments

“Schools in Beijing are quietly removing the Green Dam filter, which was required for all school computers in July, due to complaints over problems with the software,” notes this Reuters report. Even though China backed down on their earlier requirement to have the Green Dam filter installed on all computers, according to Reuters “schools were still ordered by the Ministry of Industry and Information Technology to install the web filter, which Chinese officials said would block pornography and other unhealthy content.”  The Reuters article mentions a notice carried on the home page of one Beijing high school that reads: “We will remove all Green Dam software from computers in the school as it has strong conflicts with teaching software we need for normal work.”  The article also cites a school technology director, who confirmed that the software had been taken off most computers, as saying “It has seriously influenced our normal work.”

Ironically, many educators and librarians in the United States can sympathize since they currently live under similar requirements.  Under the Children’s Internet Protection Act (CIPA) of 2000, publicly funded schools and libraries must implement a mandatory filtering scheme or run the risk of losing their funding. As the Federal Communications Commission summarizes:

[CIPA] imposes certain types of requirements on any school or library that receives funding for Internet access or internal connections from the E-rate program… Schools and libraries subject to CIPA may not receive the discounts offered by the E-rate program unless they certify that they have an Internet safety policy and technology protection measures in place. An Internet safety policy must include technology protection measures to block or filter Internet access to pictures that are: (a) are obscene, (b) child pornography, or (c) harmful to minors (for computers that are accessed by minors).

Of course, nobody wants kids viewing porn in schools, but CIPA has been know the block far more than that and has become a real pain for many educators, librarians, and school administrators who have to occasionally get around these filters to teach their students about legitimate subjects. Anyway, I just find it ironic that some American lawmakers have been making a beef about mandatory Internet filtering by the Chinese when we have our own mandatory filtering regime right here in the states. For example, Continue reading →

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PFF Event: ICANN & Internet Governance: How Did We Get Here & Where Are We Heading?

by on September 15, 2009 · 6 comments

PFF Adjunct Fellow Mike Palage led this extraordinary discussion of ICANN’s origins, evolution and future with four of ICANN’s “Founding Fathers”: Milton Mueller (author of Ruling the Root), law professor David Johnson, ICANN’s first CEO Mike Roberts and then ICANN CEO Paul Twomey. In particular, the group discussed ICANN’s mission, governance structure, and accountability; the difficult issue of new generic Top Level Domain names (gTLDs) and trademark concerns; and ICANN’s future relationship with the U.S. government. Be sure to check out the handy ICANN Glossary on page 33. The audio can be downloaded here.

Here’s the transcript (PDF):

Continue reading →

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I’m Always Doing Seven Things; I Write the Code for Brain Implants

by on September 15, 2009 · 4 comments

Thanks to Adam for the kind introduction; for folks to whom I’m unfamiliar, my Ars Technica archive has the bulk of my tech writing over the past year and change, though plenty of it is straight reporting now well past its expiration date.  It’s been suggested that for openers, I crosspost last week’s Cato @ Liberty thumbsucker on behavioral advertising regulation, which riffs on some of the commentary here, but in the interest of avoiding redundancy, I’ll just do the digest version and let the curious click through. Since they say the first day in lockup, you should pick a fight with the biggest mofo in the yard, I’ll excerpt the part where I disagree with Berin a bit:

First, while it’s certainly true that there are privacy advocates who seem incapable of grasping that not all rational people place an equally high premium on anonymity, it strikes me as unduly dismissive to suggest, as Berin Szoka does, that it’s inherently elitist or condescending to question whether most users are making informed choices about their privacy. If you’re a reasonably tech-savvy reader, you probably know something about conventional browser cookies, how they can be used by advertisers to create a trail of your travels across the Internet, and how you can limit this.  But how much do you know about Flash cookies? Did you know about the old CSS hack I can use to infer the contents of your browser history even without tracking cookies? And that’s without getting really tricksy. If you knew all those things, congratulations, you’re an enormous geek too — but normal people don’t.  And indeed, polls suggest that people generally hold a variety of false beliefs about common online commercial privacy practices.  Proof, you might say, that people just don’t care that much about privacy or they’d be attending more scrupulously to Web privacy policies — except this turns out to impose a significant economic cost in itself.

I still end up rejecting most of the proposed arguments for regulation, though a couple of the suggested rules (notice requirement, liquidated damages for intentional breach of stated privacy policy) struck me as more defensible, if not especially urgent.

That aside, I want to get down to the more important business of suggesting a TLF theme song: The Magnetic Fields’ sardonic “Technical (You’re So)” (whence the title of this post),  in which wordsmith/crooner Stephin Merritt delivers such lines as: “There are no papers on you /  The laws don’t cover what you do / You and your think-tank entourage / Are all counterculture demigods” and “You’re a Libertarian / The death of the left was you / You look like Herbert Von Karajan / You live underneath the zoo.”  Sure, they’re meant as mockery when Merritt sings them, but then, “queer” used to be a pejorative too. Reappropriation, baby.

Also, rhyming “Libertarian” with “Von Karajan” is the greatest act of poetry in music since Sting paired “He starts to shake and cough” with “the old man in / that book by Nabakov.” Fact.

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List of Recent of State Cyberbullying Measures

by on September 14, 2009 · 10 comments

Cyberbullying constitutes one of the largest growth categories of recent cyberlaw legislative proposals, and many state legislatures have already enacted measures aimed at combating this problem using a variety of approaches.  Those attempting to monitor ongoing developments in this field might find it useful to examine this National Conference of State Legislatures (NCSL) compendium of recent state cyberbullying bills.

In June, Berin Szoka and I published a PFF white paper, “Cyberbullying Legislation: Why Education is Preferable to Regulation.”  That paper mostly address federal legislation and, in particular, we contrasted the approaches set forth in Rep. Linda Sánchez’s (D-CA) “Megan Meier Cyberbullying Prevention Act,” versus the “School and Family Education about the Internet (SAFE Internet) Act,” which was introduced in the Senate by Sen. Robert Menendez (D-NJ) and in the House by Rep. Debbie Wasserman Schultz (D-FL).  Whereas the Sánchez bill would create a new federal felony to address these problems, the SAFE Internet Act proposes an education-based approach to the issue.

Generally speaking, Berin and I favor the latter approach, to the extent federal legislators feel the need to act. But we argued that state experimentation on this front may be the better way to go at this time.  As the NCSL survey suggests, states are pursing a variety of strategies and will continue to do so.  In light of that, I’m not sure why any federal legislation is needed at this time.  If the feds are really eager to push something at the national level, perhaps a generic public awareness / PSA campaign would make the most sense while more tailored state-based experimentation continues.  This is rare example of where state-based experimentation with a cyberlaw issue actually makes a lot of sense.

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