Category: Cyberlaw

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Little Brother

defendinicover2.jpgCory Doctorow’s latest novel, Little Brother, is technically a young adult novel, but there is something in there for anyone interested in cyberlaw, security, national security law, and oh yeah, a rather fun, although at times scary, tale. In classic Cory fashion, he has made the book available for free (yes well before law profs such as Benkler and Zittrain did so, Cory has been a leader in the world of I-make-money-by-giving-away-my-creations). He also allows people to remix and share the new work. The downloads and remixes are licensed under a Creative Commons Attribution-Noncommercial-ShareAlike license. Now that is a business model of the new economy. For those wondering whether this approach works, it does for Cory if making the New York Times Kids Bestseller list matters. (Scoff at your own risk. Remember kids are a tremendous market). So on to the book.

Some tech/sci-fi writers give up story for ideas. They offer great fun and build excellent worlds, but when it comes to ending the story, they fall short. (I am thinking of early Stephenson here) Little Brother, however, delivers both ideas and story. That is great because one can dive in and enjoy the characters as they navigate the modern day 1984 world of the United States.

Despite, or perhaps because, the characters and the story draw one in, the details of this world are not all fun and games. Hacking, government power, security, racism, freedom, and more swirl around as decent teens trying to have a life, trying to grow and express themselves, and trying to make mischief, crash into a new world. Anyone who remembers useful acts of rebellion and the learning that goes with them should be able to identify with these kids. The beauty of having kids as main characters is that kids often have parents. Doctorow uses the parents quite well. They express the natural desire for stability and the way that once freedom-loving individuals can easily change as they age and see the world through a lens of how-do-I-protect-my-family? Whether they will protect their kids and what the protection will look like was a subtle but important theme which Doctorow navigates well. Perhaps thoughts of becoming a father fueled this sensitivity; perhaps not. Either way it works.

Some of the text tantalizes with ways for individuals to keep their communications free, secret, and/or anonymous as context requires. Exploring those issues allows Doctorow to investigate how trust of other individuals, businesses, and the government work together to create the world we enjoy or what happens if that trust fails. Cory is not shy. He does not stop there. The relationship between federal and state government, the role of the press, and how individuals can or cannot impact the system are all in play as well.

I will stop here as I do not want to give away the details. There is more to discuss, but I also hate spoilers. So here is a possible solution. For those wishing to see Cory’s take on his book check out his post on John Scalzi’s Big Idea series. In addition, Cory is quite busy, but we hope to do a phone interview this summer. That way the law issues can be addressed and those who wish to avoid spoilers can. No promises but if he and I can connect, it should be fun.

Last, you may wonder whether I’d say buy the book given that it can be downloaded for free. Well yes I would say buy it as it keeps Cory funded. Yet, what if you decide to download it? Should you donate to Cory? No. In fact he would prefer you buy a copy for you or someone you love as it works better for his publisher and him. Or ever the innovative person, Cory has another idea you may wish to pursue: a donation program for the book. In short, Cory and his assistant have assembled a list of libraries and schools that want the book. He suggests that people who downloaded the book and want to give him money, find a library or school, buy the book online, and ship it to the school. Everybody wins: the public, the publisher, and Cory (who will receive royalties). Cory sent me the file before he put it online so I could review it. Still, I plan on following his suggestion and donating a book.

Image: Courtesy of Pablo Defendini

The image is an early sketch for a potential paperback cover. Mr. Defendini has a portfolio that you may enjoy too.

Facebook Frenzy: Faking Friendships?

Thoreau was famously skeptical of communications technology, wryly observing that when the telegraph connected Maine and Texas, citizens of each state could find they have little to say to one another. Shannon Vallor, Professor of Philosophy at Santa Clara University, struck a similarly cautious note at a fascinating discussion of the ethics of social networking at Stanford. Mining the rich tradition of virtue theory in moral philosophy, Vallor observed that social networking can both undermine and reinforce the persistent dispositions of character that promote human flourishing. Here are some similar observations of Vallor’s from another panel:

[W]hat impact is social networking technology having on the ways that people build and sustain close interpersonal relationship and, in particular, the communicative virtues that help such relationships to flourish? I will identify five communicative virtues that I believe warrant careful reflection in connection with social networking technology.

First is patience. Patience is, without a doubt, one of the most important virtues for sustaining close relationships. It develops through communicative activities such as listening. For example, listening to a friend tell a story or recount a lengthy anecdote without jumping in and finishing the story oneself or interrupting with hey, that reminds me of this thing that happened to me yesterday. Patience, once it becomes not just a momentary indulgence of the other, but an enduring part of one’s own character, that is, a virtue, allows one’s relationships with others to manifest deeper, mutual understanding, greater and more lasting commitments and a feeling on the part of others that you are willing to connect with them on their terms and not just yours; that your interest in them does not end with their ability to keep you constantly amused or fascinated.

Yet the style of communication favored by digital natives and fostered by social networking sites like Facebook and MySpace, privileges brevity and directness. And, thus, we must ask whether, and in what ways, such technologies can also encourage and reward patience as a virtue.

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Debate on the Future of the Internet

I think Deven’s advice is great, but for those who want to sample Zittrain’s new book (The Future of the Internet and How to Stop It) before buying it, it’s excerpted in the Boston Review this month. (There’s also an outline of its ideas in this Harvard Law Review article.) It’s a very thoughtful analysis of some of the most difficult issues affecting internet policy. I will have more to say in future posts, but I just wanted to highlight this work, and the all-star respondents who comment on it in the same issue.

One of the biggest problems that Zittrain spots is that “bad code is now a business:”

So long as spam remains profitable, [many crimes] will persist. . . [including] viruses that compromise PCs to create large zombie “botnets” open to later instructions. Such instructions have included directing PCs to become their own e-mail servers, sending spam by the thousands or millions to e-mail addresses harvested from the hard disk of the machines themselves or gleaned from Internet searches, with the entire process typically proceeding behind the back of the PCs’ owners.

Botnets can also be used to launch coordinated attacks on a particular Internet endpoint. For example, a criminal can attack an Internet gambling Web site and then extort payment to make the attacks stop. The going rate for a botnet to launch such an attack is reputed to be about $50,000 per day.

What to do? I’ll just append a very brief excerpt of the Boston Review piece below the fold.

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Getting a Tax Refund? Buy A Book – Zittrain’s The Future of the Internet and How to Stop It

Future of the Internet.jpgJonathan Zittrain’s new book, The Future of the Internet and How to Stop It, was released today. There is much to recommend in the book and too much to address well in a blog post. Still, having finished it, I can say that it offers many insights.

In short, as Zittrain explains in three principles: “Our information technology ecosystem functions best with generative technology at its core.” “Generativity instigates both within and beyond the technological layers of the information technology ecosystem.” “Proponents of generative systems ignore the drawbacks attendant to generativity’s success at their peril.”

The presentation of the history of generative systems is worth the candle alone. There Prof. Zittrain tracks not only the rise of the Internet as we know it, but cautions us with reminders of early battles in the world of IBM mainframes and AT&T telephones. By framing the issue so that one sees how easily the world of “tethered appliances” could have been our world, Zittrain offers a glimpse of how we could inhabit such a world.

The explanation of the generative pattern captures the way small, powerful, and potentially disruptive technologies allow for great and rapid changes with large upsides, but by their nature foster the possibility of pernicious behaviors when adoption spreads to a general population. When that happens several areas of concern such as cybersecurity, spam, privacy, net neutrality, intellectual property, and more impact the generative internet. (For those unfamiliar with the idea, generative technologies exhibit five characteristics leverage, adaptability, ease of mastery, accessibility, and transferability (p. 71-73); for a related model of understanding some of these ideas I suggest Brett Frischmann’s An Economic Theory of Infrastructure and Commons Management).

The discussions of all these areas alone makes the book worth a read. In addition, it appears that Prof. Zittrain picks up a theme I have started to explore (so I may be projecting here) that may surprise some: the law is not necessarily useful or the best way to address these problems. Rather, just as the Internet grew from community efforts, it may best be governed by such efforts. To be clear Zittrain is no fool. He knows that states, pan-state groups, and large trade or interest groups have roles to play. But he makes a compelling case that just as the Internet grew from individuals and small groups who “identify[ed] and belong[ed]” to the Net, today we need to re-create the Internet community so that people “identify and belong” to it such that they tend to it and allow it to continue to grow. For Zittrain such a shift will harness the efforts of numerous good actors to thwart the bad actors while keeping open room for the unpredicted, innovative, and in a word generative Internet that has provided so much to us thus far.

There is more to say on this one, but for now I’d say buy the book.

cross-posted at Madisonian

Brazil: Bye, Bye WordPress

Apparently a Brazilian court has ordered all ISPs to block WordPress because one site on the blogging platform may have defamed a noted attorney there. I can’t read Portuguese, so I can’t give the full background of the story, but my contact Marcel Leonardi thinks the case will cause serious problems for bloggers in Brazil. This strikes me as the mother of all overinclusive (and ineffective) remedies, but as Jonathan Zittrain reminds us, a totally untrammeled internet is likely to provoke many blunt responses.

UPDATE: Here is Leonardi’s take:

The story does not mention the address of the specific blog . . . but my contacts have already found out the problem – the blog was created by some unknown party and it was offensive to . . . one of the most famous . . . .attorneys in Brazil. . . . What saddens me the most is that some people . . . think this is an acceptable solution for defamation on the Internet – muting millions of voices because of one bad apple.

Dilemmas of the Cheap Aesthetic

I’ve frequently taken aim at “expensive tastes” on this blog. It seems like the corollary of that critique would be praise for inexpensive tastes, or a cheap aesthetic. This may well be the cheapest music video ever made (American Princes, Never Grow Old):

Here’s the band’s (promoter’s) description of the video on YouTube:

Take a moment and think back to the younger years. All you have is a pen, notebook paper, and an imagination. No distractions to interrupt you, just you and the music in your head. How would you envision your new favorite rock band? American Princes captures this innocent moment with their music video, Never Grow Old. It will effortlessly and entertainingly take you back to simplicity . . . . It’s new, fresh, ingenious, and original.

The simulations here are not merely simple (unlike, say, Justice’s graphics-dominated video for DVNO), but are quite a lot less resource-intensive than, say, real drums, guitars, stages, etc. Never Grow Old reminded me of Albert C. Lin’s article Virtual Consumption: A Second Life for Earth (2008 BYU L. Rev. 47), which provides a creative response to the Malthusian dilemmas I was discussing yesterday.

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Computers, Freedom, and Privacy Conference

As a member of the Program Committee, I just wanted to post this announcement for CFP. This has been a great conference and I’m sure this year’s will be a terrific event. Note that the deadline for Panel, Tutorial, and Speaker proposals is March 21, 2008.

COMPUTERS, FREEDOM, AND PRIVACY: TECHNOLOGY POLICY ’08

18th Annual CFP conference

May 20-23, 2008

Omni Hotel

New Haven, CT

CALL FOR PROPOSALS

This election year will be the first to address US technology policy in the information age as part of our national debate. Candidates have put forth positions about technology policy and have recognized that it has its own set of economic, political, and social concerns. In the areas of privacy, intellectual property, cybersecurity, telecommunications, and freedom of speech, an increasing number of issues once confined to experts now penetrate public conversation. Our decisions about technology policy are being made at a time when the architectures of our information and communication technologies are still being built. Debate about these issues needs to be better-informed in order for us to make policy choices in the public interest.

Open participation is invited for proposals on panels, tutorials, speaker suggestions, and birds of a feather sessions through the CFP: Technology Policy ’08 submission page. More details below.

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Facebook Banishment and Due Process

facebook3.jpgRecently, I was talking with David Lat, author of the blog Above the Law, and he was complaining about being banished from Facebook. David was an active user of Facebook, and he suddenly and inexplicably found himself banned from the site. Facebook didn’t supply him with any reason.

I found the issue quite intriguing, and David said I could blog about it. In particular, what makes this issue of interest to me is how it applies more generally to Web 2.0 applications. With Web 2.0, people invest a lot of time creating profiles, uploading information, and so on. And they start to depend upon these applications in their lives.

lat-david-2.jpgDavid also said he has a lot of important information on his Facebook profile. He uses it as a way to communicate with people, and he uses it to help him gather information for use in his blogging. So being kicked off Facebook is a big deal to David. It can impact his job. It can also impact his friendships and professional relationships. For example, David told me he received emails from several friends who wondered where he had gone. They thought David might be ignoring them or might no longer be their “friend” on Facebook.

As more of our lives become dependent on Web 2.0 technologies, should we have some sort of rights or consumer protection? Is Facebook the digital equivalent to the company town?

David checked Facebook’s website, which has a FAQ about disabled accounts. Facebook states:

Your account was disabled because you violated Facebook’s Terms of Use, to which you agreed when you first registered for an account on the site. Accounts can either be disabled for repeat offenses or for one, particularly egregious violation.

Facebook does not allow users to register with fake names, to impersonate any person or entity, or to falsely state or otherwise misrepresent themselves or their affiliations.

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PainStation: A Clockwork Lemon?

boccioni.jpgI’ve previously covered technological and legal responses to the ever-increasing cell phone din. Now some inventive designers are imagining new scenarios for noise control. For example, Social Mobile 5 (SoMo5) “launches sound bombs into other people’s annoying conversations.” Authorities may outfit repeat offenders with SoMo1, which “delivers an electric shock whose intensity varies depending on how loudly the person at the other end of the line is speaking.” (Be sure to check out the online video. I wonder if they’ll submit it to future rulemakings on the issue?)

When I saw these darkly fanciful ideas on display at the Museum of Modern Art’s show Design and the Elastic Mind, I immediately connected them to another part of the exhibit: the PainStation, which would raise the stakes of videogaming by making players’ left hands suffer “heat, electric shocks, or a quick whipping” after mistakes.

These ideas reminded me of a great Dan Burk article title: A Clockwork Lemon. I doubt they’ll be built, but they subversively suggest the way individuals may move from reluctantly submitting to technologies of control to expecting them. As Julian Dibbell noted in his book on Chinese “gold farmers” (individuals who perform repetitive tasks in online games in order to sell game points to wealthier purchasers), some of the gold farmers would relax after 84-hour weeks of game playing by . . . playing more games.

I suppose on some libertarian angle we should celebrate this merger of freedom and necessity in the future. The glittering, perfectly designed interfaces at MOMA suggest as much. But the occasional project highlighted the darker side of technologies of control, and the “future farms” that the spontaneous order of the market will inspire. I’ll describe those more in a bit.

Photo Credit: wallyg, photo of Umberto Boccioni’s Unique Forms of Continuity in Space.

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The Wikileaks Injunction Case

wikileaks.jpgSince it involves a blend of civil procedure, internet law, and copyright — i.e., my entire teaching package — I really have no excuse for not posting on the Wikileaks injunction matter. For those who have not been following it, a Swiss bank with a branch in the Cayman Islands, Bank Julius Baer (“BJB”), filed suit against the website Wikileaks.org in federal court in California and obtained a pair of emergency orders essentially shutting the domain name down. Wikileaks is a user-edited website, much like Wikipedia, but where the purpose is not to post encyclopedia entries, but rather leaked documents from governments and private entities. BJB argued as a basis for the orders that someone, allegedly a former employee, posted stolen documents revealing confidential aspects of BJB’s operations.

The orders require the domain name registrar, Dynadot, to point the wikileaks.org domain name to an empty page. This doesn’t shut down the site, exactly, it just makes it harder to find. It’s like an order to a telephone company ordering a vanity 1-800 number like 1-800-BBOYDEN disconnected. Sure, you can still reach me on my cell and work numbers, but you’ll have to go look those up and most people won’t bother. (Note: I don’t actually have a 1-800 number — it’s a hypothetical.) The “Order Granting Permanent[!] Injunction” and “Amended TRO and Order to Show Cause re Preliminary Injunction,” both dated Feb. 15, are available online, as is the entire court docket, via Justia. (See Michael Froomkin’s discussion of why the relationship between the two orders is confusing.)

There’s lots of focus on the broader question of whether domain-name-disabling is a prior restraint barred by the First Amendment. I want to focus on several lesser but still interesting nuggets: the overlooked privacy interests at stake, the role of the DMCA, the breadth of TROs in the internet age, and “futility” arguments against anti-leak injunctions based on internet distribution.

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