Articles by Jim Harper 
Jim is the Director of Information Policy Studies at The Cato Institute, the Editor of Web-based privacy think-tank Privacilla.org, and the Webmaster of WashingtonWatch.com. Prior to becoming a policy analyst, Jim served as counsel to committees in both the House and Senate.
Though many didn’t think it possible – and even more didn’t notice – the TechLiberationFront team outdid itself yet again at last night’s Alcohol Liberation Front event. The room was buzzing with excitement as the brightest tech policy lights on the . . . um . . . first floor of the Science Club gathered to imbibe and share their latest thinking on . . . um . . . stuff.
More than a few people were trying to place estimates on attendance. It was clear that the number of TLF fans – dare we call them “groupies”? – had at least doubled compared to prior events, possibly tripled, and maybe even quadrupled. Let’s just say TLF begoogled its prior showings. Because that doesn’t really mean anything, but it sounds awfully impressive and kind of techie too.
Joining in the fun – or at least aware of our presence (some of them) – was the D.C. Mobile Monday chapter. D.C. MM had hosted drinks on the second floor which almost made it worthwhile to hear a presentation from Working Assets on how they used text messaging in the last election cycle.
The event ended consistent with the old line, “You don’t have to go home but you can’t stay here.” Some people’s wives were out of town. Others are just red-blooded Americans. You see, Science Club is not far from some fine dining establishments . . . .
Washington University School of Law professor Neil Richards and George Washington University Law School professor Daniel Solove have an important new law review article out. Privacy’s Other Path: Recovering the Law of Confidentiality is a useful reminder of a dimension of privacy apart from the privacy torts so famously inspired by Warren and Brandeis in their 1890 Harvard Law Review article.
Confidentiality is the idea that you can share information subject to restrictions on further disclosure and use. There are often implicit understandings about how shared or mutually created information should be treated. It’s an important point that’s been conveniently forgotten in government arguments for “data retention,” for example. Confidentiality in the financial services sphere has been eviscerated by the Bank Secrecy Act and the Supreme Court cases that followed it, as well as Smith v. Maryland in the telecommunications context.
Richards and Solove’s work has its awkward turns – they characterize continental Europe’s focus on dignity and America’s focus on liberty as highly individualistic, while suggesting that confidentiality is “based on the protection of relationships.” If these characterizations are relevant at all, confidentiality can be seen just as much as a protection of individuals, the difference being that confidentiality is rooted more deeply in contract. Small matter, though.
Overall a good work, and an important reminder.
(HT: Schneier)
There’s Viacom vs. Gootube in the courts of law.
And here are some of the relevant discussions in Washington, D.C.:
At the Advisory Committee to the Congressional Internet Caucus’ State of the Net Conference 2007, there was a panel discussion entitled, “User-Generated Content – Can Copyright Tolerate Mixing & Mashing?” Rob Pegoraro of The Washington Post moderated. Panelists were Jim DeLong of the Progress & Freedom Foundation, Pam Samuelson of the Berkeley Center for Law & Technology and Steven Starr of Revver.com. Video here. (See if you have a better experience with it than I did.)
And tomorrow, PFF is having an event on Capitol Hill titled “What Goes Up Must Come Down: Copyright and Process in the Age of User-Posted Content.”
This is the age of user-generated content. Let’s hear what you think of these events in the comments.
A couple of Google lawyers have announced on the Google ‘blog that the company will be making the data from their server logs “much more anonymous, so that it can no longer be identified with individual users, after 18-24 months.” That’s a big, important change, as Google’s privacy policy has never before pledged to destroy or anonymize data about all of our searches.
Now, there are some interesting details – details that are highlighted by the text I quoted above. “Anonymous” is correctly regarded as an absolute condition. Like pregnancy, anonymity is either there or it’s not. Modifying the word with a relative adjective like “more” is a curious use of language.
Google has a challenge, if they’re going to anonymize data and not destroy it, to make sure that a person’s identity and behavior cannot be reconstructed from it. As AOL’s fiasco with releasing “anonymized” search data showed, clipping off the obvious identifiers won’t do it. As data mining capabilities advance, anonymizing techniques will have to keep ahead of that.
There are interesting things that can be done to synthesize data, making it statistically relevant while factually incoherent. Hopefully, Google will sic some of its finest famously-smarty-pants engineers on the task of making their anonymous data really, really anonymous.
A spokesman for the Smart Card Alliance says:
Privacy concerns are all perception and hype and no substance but carry considerable weight with state legislators because no one wants to be accused of being soft on privacy.
That’s Randy Vanderhoof, the Smart Card Alliance’s executive director, quoted in a Federal Computer Week article on the collapsing REAL ID Act/national ID plan. He was speaking of Congressman Tom Allen’s (D-ME) bill to restore the 9/11 Commission-inspired ID provisions of the Intelligence Reform and Terrorism Prevention Act of 2004.
Mr. Vanderhoof and the Smart Card Alliance couldn’t appear more dismissive, ignorant, and unserious about issues that are a core problem preventing uptake of its products.
There was a blogosphere dust-up last week when the Washington Post reported on a law student who had been savaged in Internet chat rooms and subsequently not been hired by any of the many law firms she interviewed with. It’s a perfect story for the Post because Washington has so many lawyers and because the culture here lags in tech-savvy.
Reliable TechDirt debunked the story somewhat by pointing out that employers would be foolish to rely on such things in their hiring decisions.
Now, Volokh conspirator Ilya Somin points out that, given her credentials, the law student was probably left without major-law-firm work on the merits.
Like this person, when I interviewed for law firm summer associate jobs as a second year student at Yale, I had “graduated Phi Beta Kappa [from my undergrad institution], ha[d] published in top legal journals and completed internships at leading institutions in [my] field.” And, very similar to her, after interviewing at a dozen big DC firms, I ended up with two call backs and zero offers. Why did this happen? Frantic later investigation showed that the main culprits were precisely some of the credentials listed above. Because of them (particularly the publications), firms feared that I would go into academia and either never take a permanent job with the firm, or leave after just a year or two. A highly paid associate who quickly jumps ship for academia is far less profitable for a firm than one that stays for several years and can eventually bill hours as a senior associate.
Once again, “blame the Internet” fails to hold up. Law firms and other employers are unlikely in general to use salacious information that is anonymously posted, or long outdated, in their hiring decisions. Correlation is not causation.
Yesterday, the Idaho Senate passed Joint Memorial 3, earlier approved unanimously by the House, to refuse implementation of the REAL ID Act. More info here.
I testified on the bill in the Idaho House’s Transportation and Defense Committee, and participated in a panel discussion at the Idaho statehouse, where some common sense was heard.
Everyone believes that government would be better if there was more transparency – though people’s ideas of “better” can range quite widely. As I’ve noted before, the Internet and other new technologies have a lot to do with making government information more available.
Apropos of this phenomenon – and the impending advent of spring – next week turns out to be “Sunshine Week,” which includes a wide variety of open government activities. Among other things, the Sunlight Foundation, sponsor of the Sunlight Network, is having a panel discussion called “Sunshine in the First Branch: How Transparent is Congress?“
Oh sure, this kind of thing is a little kumbaya, but I’ve been known to hum a few bars of that tune and, again, the benefits of transparency are a matter of (near) pan-ideological agreement. Secrecy is also bad. Let the sun shine in.
And, hey all you coders, Sunlight is offering a prize for the best congressional mashup.
My friend Seba, who DJs around here in D.C. from time to time, had some interesting insights on the music scene, and the relationship between copyright and new music, which I brought up in my recent “Amen Brother” post:
You know, I was thinking more about this and I’m not sure it’s totally correct to say the current legal framework for IP as it applies to sampling stifles creativity. I am in total agreement that it’s overly restrictive . . . and, as that YouTube vid pointed out, it’s kind of ass-backwards: How does a series of seminal beats that were so widely sampled — and thus arguably in the public domain — become the intellectual property of a company that creates beats for musicians to use in new works?
What I want to say is that this legal framework creates a barrier, but not at the level of creativity. Rather, the barrier exists at the level of commercial release. Here’s an example:
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