Category: Google & Search Engines

Facebook is More Like a Cable Network than a Newspaper

As I worried yesterday, Facebook’s defenders are already trying to end the conversation about platform bias before it can begin. “It’s like complaining that the New York Times doesn’t publish everything that’s fit to print or that Fox News is conservative,” Eugene Volokh states.

Eight years ago, I argued that platforms like Google are much more like cable networks than newspapers–and should, in turn, be eligible for more governmental regulation. (The government can’t force Fox News to promote Bernie Sanders–but it can require Comcast to carry local news.) The argument can be extended to dominant social networks, or even apps like WeChat.

As I note here, to the extent megaplatforms are classifiable under traditional First Amendment doctrine, they are often closer to utilities or cable networks than newspapers or TV channels. Their reach is far larger than that of newspapers or channels. Their selection and arrangement of links comes far closer to the cable network’s decision about what channels to program (where such entities, by and large, do not create the content they choose to air), than it does to a newspaper which mostly runs its own content and has cultivated an editorial voice. Finally, and most importantly, massive internet platforms must take the bitter with the sweet: if they want to continue avoiding liability for intellectual property infringement and defamation, they should welcome categorization as a conduit for speech, rather than speaker status itself.

Admittedly, if there is any aspect of Facebook where it might be said to be cultivating some kind of editorial voice, it is the Trend Box. It is ironic that they’ve gotten in the most trouble for this service, rather than the much more problematic newsfeed. But they invited this trouble with their bland and uninformative description of what the Trend Box is. Moreover, if the Trend Box is indeed treated as “media” (rather than a conduit for media), it could betoken a much deeper challenge to foundational media regulation like sponsorship disclosures–a topic I’ll tackle next week.

Complicating the Narrative of Legal Automation

Richard Susskind has been predicting “the end of lawyers” for years, and has doubled down in a recent book coauthored with his son (The Future of the Professions). That book is so sweeping in its claims—that all professions are on a path to near-complete automation–that it should actually come as a bit of a relief for lawyers. If everyone’s doomed to redundancy, law can’t be a particularly bad career choice. To paraphrase Monty Python: nobody expects the singularity.

On the other hand, experts on the professions are offering some cautions about the Susskinds’ approach. Howard Gardner led off an excellent issue of Daedalus on the professions about ten years ago. He offers this verdict on the Susskinds’ perfunctory response to objections to their position:

In a section of their book called “Objections,” they list the principal reasons why others might take issue with their analyses, predictions, and celebratory mood. This list of counter-arguments to their critique includes the trustworthiness of professionals; the moral limits of unregulated markets; the value of craft; the importance of empathy and personal interactions; and the pleasure and pride derived from carrying out what they term ‘good work.’ With respect to each objection, the Susskinds give a crisp response.

I was disappointed with this list of objections, each followed by refutation. For example, countering the claim that one needs extensive training to become an expert, the Susskinds call for the reinstatement of apprentices, who can learn ‘on the job.’ But from multiple studies in cognitive science, we know that it takes approximately a decade to become an expert in any domain—and presumably that decade includes plenty of field expertise. Apprentices cannot magically replace well-trained experts. In another section, countering the claim that we need to work with human beings whom we can trust, they cite the example of the teaching done online via Khan Academy. But Khan Academy is the brainchild of a very gifted educator who in fact has earned the trust of many students and indeed of many teachers; it remains to be seen whether online learning à la Khan suffices to help individuals—either professionals or their clients—make ‘complex technical and ethical decisions under conditions of uncertainty.’ The Susskinds recognize that the makers and purveyors of apps may have selfish or even illegal goals in mind. But as they state, “We recognize that there are many online resources that promote and enable a wide range of offenses. We do not underestimate their impact of threat, but they stand beyond the reach of this book” (p. 233).

Whether or not one goes along with specific objections and refutations, another feature of the Susskinds’ presentation should give one pause. The future that they limn seems almost entirely an exercise in rational deduction and accordingly devoid of historical and cultural considerations.

Experts with a bit more historical perspective differ on the real likelihood of pervasive legal automation. Some put the risk to lawyers at under 4%. Even the highly cited study by Carl Frey and Michael Osborne (The Future of Employment: How Susceptible Are Jobs to Automation) placed attorneys in the “low risk” category when it comes to replacement by software and robots. They suggest paralegals are in much more danger.

But empirical research by economist James Bessen has complicated even that assumption:“Since the late 1990s, electronic document discovery software for legal proceedings has grown into a billion dollar business doing work done by paralegals, but the number of paralegals has grown robustly.” Like MIT’s David Autor, Bessen calls automation a job creator, not a job destroyer. “The idea that automation kills jobs isn’t true historically,” Steve Lohr reports, and is still dubious. The real question is whether we reinforce policies designed to promote software and robotization that complements current workers’ skills, or slip into a regime of deskilling and substitution.

0

How CalECPA Improves on its Federal Namesake

Last week, Governor Brown signed the landmark California Electronic Communications Privacy Act[1] (CalECPA) into law and updated California privacy law for modern communications. Compared to ECPA, CalECPA requires warrants, which are more restricted, for more investigations; provides more notice to targets; and furnishes as a remedy both court-ordered data deletion and statutory suppression.  Moreover, CalECPA’s approach is comprehensive and uniform, eschewing the often irrational distinctions that have made ECPA one of the most confusing and under-protective privacy statutes in the Internet era.

Extended Scope, Enhanced Protections, and Simplified Provisions

CalECPA regulates investigative methods that ECPA did not anticipate. Under CalECPA, government entities in California must obtain a warrant based on probable cause before they may access electronic communications contents and metadata from service providers or from devices.  ECPA makes no mention of device-stored data, even though law enforcement agents increasingly use StingRays to obtain information directly from cell phones. CalECPA subjects such techniques to its warrant requirement. While the Supreme Court’s recent decision in United States v. Riley required that agents either obtain a warrant or rely on an exception to the warrant requirement to search a cell phone incident to arrest, CalECPA requires a warrant for physical access to any device, not just a cell phone, which “stores, generates, or transmits electronic information in electronic form.” CalECPA clearly defines the exceptions to the warrant requirement by specifying what counts as an emergency, who can give consent to the search of a device, and related questions.

ECPA’s 1986-drafted text only arguably covers the compelled disclosure of location data stored by a service provider, and does not clearly require a warrant for such investigations. CalECPA explicitly includes location data in the “electronic communication information” that is subject to the warrant requirement when a government entity accesses it from either a device or a service provider (broadly defined).  ECPA makes no mention of location data gathered in real-time or prospectively, but CalECPA requires a warrant both for those investigations and for stored data investigations. Whenever a government entity compels the “the production of or access to” location information, including GPS data, from a service provider or from a device, CalECPA requires a warrant.

Read More

Air Traffic Control for Drones

8435473266_16e7ae4191_zRecently a man was arrested and jailed for a night after shooting a drone that hovered over his property. The man felt he was entitled (perhaps under peeping tom statutes?) to privacy from the (presumably camera-equipped) drone. Froomkin & Colangelo have outlined a more expansive theory of self-help:

[I]t is common for new technology to be seen as risky and dangerous, and until proven otherwise drones are no exception. At least initially, violent self-help will seem, and often may be, reasonable even when the privacy threat is not great – or even extant. We therefore suggest measures to reduce uncertainties about robots, ranging from forbidding weaponized robots to requiring lights, and other markings that would announce a robot’s capabilities, and RFID chips and serial numbers that would uniquely identify the robot’s owner.

On the other hand, the Fortune article reports:

In the view of drone lawyer Brendan Schulman and robotics law professor, Ryan Calo, home owners can’t just start shooting when they see a drone over their house. The reason is because the law frowns on self-help when a person can just call the police instead. This means that Meredith may not have been defending his house, but instead engaging in criminal acts and property damage for which he could have to pay.

I am wondering how we might develop a regulatory infrastructure to make either the self-help or police-help responses more tractable. Present resources seem inadequate. I don’t think the police would take me seriously if I reported a drone buzzing my windows in Baltimore—they have bigger problems to deal with. If I were to shoot it, it might fall on someone walking on the sidewalk below. And it appears deeply unwise to try to grab it to inspect its serial number.

Following on work on license plates for drones, I think that we need to create a monitoring infrastructure to promote efficient and strict enforcement of law here. Bloomberg reports that “At least 14 companies, including Google, Amazon, Verizon and Harris, have signed agreements with NASA to help devise the first air-traffic system to coordinate small, low-altitude drones, which the agency calls the Unmanned Aerial System Traffic Management.” I hope all drones are part of such a system, that they must be identifiable as to owner, and that they can be diverted into custody by responsible authorities once a credible report of lawbreaking has occurred.

I know that this sort of regulatory vision is subject to capture. There is already misuse of state-level drone regulation to curtail investigative reporting on abusive agricultural practices. But in a “free-for-all” environment, the most powerful entities may more effectively create technology to capture drones than they deploy lobbyists to capture legislators. I know that is a judgment call, and others will differ. I also have some hope that courts will strike down laws against using drones for reporting of matters of public interest, on First Amendment/free expression grounds.

The larger point is: we may well be at the cusp of a “this changes everything” moment with drones. Illah Reza Nourbakhsh’s book Robot Futures imagines the baleful consequences of modern cities saturated with butterfly-like drones, carrying either ads or products. Grégoire Chamayou’s A Theory of the Drone presents a darker vision, of omniveillance (and, eventually, forms of omnipotence, at least with respect to less technologically advanced persons) enabled by such machines. The present regulatory agenda needs to become more ambitious, since “black boxed” drone ownership and control creates a genuine Ring of Gyges problem.

Image Credit: Outtacontext.

Corporate Experimentation

Those interested in the Facebook emotional manipulation study should take a look at Michelle N. Meyer’s op-ed (with Christopher Chabris) today:

We aren’t saying that every innovation requires A/B testing. Nor are we advocating nonconsensual experiments involving significant risk. But as long as we permit those in power to make unilateral choices that affect us, we shouldn’t thwart low-risk efforts, like those of Facebook and OkCupid, to rigorously determine the effects of those choices. Instead, we should…applaud them.

Meyer offers more perspectives on the issue in her interview with Nicolas Terry and me on The Week in Health Law podcast.

For an alternative view, check out my take on “Facebook’s Model Users:”

[T]he corporate “science” of manipulation is a far cry from academic science’s ethics of openness and reproducibility. That’s already led to some embarrassments in the crossover from corporate to academic modeling (such as Google’s flu trends failures). Researchers within Facebook worried about multiple experiments being performed at once on individual users, which might compromise the results of any one study. Standardized review could have prevented that. But, true to the Silicon Valley ethic of “move fast and break things,” speed was paramount: “There’s no review process. Anyone…could run a test…trying to alter peoples’ behavior,” said one former Facebook data scientist.

I just hope that, as A/B testing becomes more ubiquitous, we are well aware of the power imbalances it both reflects and reinforces. Given already well-documented resistance to an “experiment” on Montana politics, it’s clear that the power of big data firms to manipulate even the very political order that ostensibly regulates them, may well be on the horizon.

Europe Steps Up to the Challenge of Digital Competition Law

Two years ago U.S. authorities abandoned a critical case in digital antitrust. The EC now appears ready to fill the void:

The European Commission is said to be planning to charge Google with using its dominant position in online search to favor the company’s own services over others, in what would be one of the biggest antitrust cases here since regulators went after Microsoft. . . . If Europe is successful in making its case, the American tech giant could face a huge fine and be forced to alter its business practices to give smaller competitors like Yelp greater prominence in its search queries.

I applaud this move. As I’ve argued in The Black Box Society, antitrust law flirts with irrelevance if it fails to grapple with the dominance of massive digital firms. Europe has no legal or moral obligation to allow global multinationals to control critical information sources. Someone needs to be able to “look under the hood” and understand what is going on when competitors of Google’s many acquired firms plunge in general Google search results.

Google argues that its vast database of information and queries reveals user intentions and thus makes its search services demonstrably better than those of its rivals. But in doing so, it neutralizes the magic charm it has used for years to fend off regulators. “Competition is one click away,” chant the Silicon Valley antitrust lawyers when someone calls out a behemoth firm for unfair or misleading business practices. It’s not so. Alternatives are demonstrably worse, and likely to remain so as long as the dominant firms’ self-reinforcing data advantage grows. If EU authorities address that dynamic, they’ll be doing the entire world a service.

PS: For those interested in further reading about competition online:
Read More

Meet the New Boss…

One of the most persistent self-images of Silicon Valley internet giants is a role as liberators, emancipators, “disintermediators” who’d finally free the creative class from the grips of oligopolistic music labels or duopolistic cable moguls. I chart the rise and fall of the plausibility of that narrative in Chapter 3 of my book. Cory Doctorow strikes another blow at it today:

[T]he competition for Youtube has all but vanished, meaning that they are now essential to any indie artist’s promotion strategy. And now that Youtube doesn’t have to compete with other services for access to artists’ materials, they have stopped offering attractive terms to indies — instead, they’ve become an arm of the big labels, who get to dictate the terms on which their indie competitors will have to do business.

Ah, but don’t worry–antitrust experts assure us that competition is just around the corner, any day now. Some nimble entrepreneur in a garage has the 1 to 3 million servers now deployed by Google, can miraculously access past data on organizing videos, and is just about to get all the current uploaders and viewers to switch to it. The folklore of digital capitalism is a dreamy affair.

The Black Box Society: Interviews

My book, The Black Box Society, is finally out! In addition to the interview Lawrence Joseph conducted in the fall, I’ve been fortunate to complete some radio and magazine interviews on the book. They include:

New Books in Law

Stanford Center for Internet & Society: Hearsay Culture

Canadian Broadcasting Corporation: The Spark

Texas Public Radio: The Source

WNYC: Brian Lehrer Show.

Fleishman-Hillard’s True.

I hope to be back to posting soon, on some of the constitutional and politico-economic themes in the book.

2

Yahoo! and YouTube

Mozilla switched to using Yahoo! for its search engine, and so I noticed something about how it shows YouTube results; something that may upset YouTube aka Google. When I was writing about lightsabers and 3D printing, I wanted to embed a clip from Return of the Jedi. The search on Yahoo! showed me a potential clip. I hit play to confirm that. It was good for my needs. I looked for the embed code, and it wasn’t there. There was a share button up top, but for the full page and codes, I had to go to the YouTube page. Now that is what happens when one embeds a YouTube video. But I wonder whether YouTube posters will be upset (or maybe even YouTube/Google) to find that a rival search engine maybe undercutting them. For example, it seems, I stress seems as I ran only one test, that a YouTube video that has an ad before a video lacks that ad when on Yahoo! Banner ads seem to be present on both, but they differ. I am guessing Google gets to serve those and maybe they vary depending on where the video is served. That would make sense given the targeting should vary depending on where the video is shown. Still if Yahoo! is taking content and showing it on its site, perhaps making money that way too (or at least keeping it from the Goog), will we see a replay of the early Internet cases on framing, diversion, etc., but with Google as the plaintiff? If so, is that an ironic moment where some folks will be saying Google just got Googled (i.e., I am thinking certain industries see being “Googled” as something other than being searched for; hey that may show that the whole genericisim question is less of an issue.).

0

Hello Stigler: Google Trusted Stores, Amazon, and Price Discrimination

Hello, Stigler. Matchmaking and advertising are Google’s forte. It has upped its game. Never to leave things as they are, Google has been rolling out a trusted vendor system. I noticed the service for a company that I cannot recall. Not a good sign for the company, but then again I don’t notice Amazon third parties either. If Google can use algorithms and other options such as requiring applications by vendors to be part of a trusted network of retailers, that change could be huge. There are, however, some issues.

First, Amazon should keep an eye on this program as it might be the first one to challenge Amazon’s excellent third party system. For that to be a true threat, Google will have to find a way to protect customers. Amazon has been great, in my experience, when it comes to protecting me while I deal with sellers far away and sometimes dubious. It does not give away my credit card etc. So if a lemon is in play, Amazon covers me. I assume it takes a fee for being the broker. Google customer service may have to evolve, if it is to match Amazon. A series of online, automated loops that end up hitting walls will make me stay with Amazon. But as Google gets better at identifying good sellers and protecting consumers, the service may work well. In addition, the play should feed into Google’s foray into ecommerce. Again if it can aid in delivery and resolve poor third party service, Google could do quite well in this space.

Second, will search results be influenced by participation in the program? On the one hand, I’d love results that lead to better sellers. Heck if Amazon or eBay ratings figured into Google results and improved knowing whether an ad or listed result was trust-worthy, that’d be great. Then again, right or wrong, I expect Google watchers/haters/worriers will argue that Google has promoted results unfairly. As long as a company can go through certification, it seems that argument should fail. I imagine Amazon, eBay, and others require some level of clearance to be in their system. Regardless of purveyor, it seems systems that are relatively low-cost (or maybe free except for time to fill out forms) to join and then are monitored should be embraced. In other words, Yelp etc. are near useless to me. Crowds are not as smart as folks think. As the great agent Kay in Men in Black said, “A person is smart. People are dumb, panicky dangerous animals and you know it.” More ways to improve how each of us, separately, evaluates options would be welcome, and plays to the way we each are capable of being smart. Options that limit us and feed echoes of dubious sources, behaviors, and beliefs, I’d like to avoid.

So we’ll see whether Google can one-up Amazon in connecting buyers and sellers. If so, I may buy more LPs and who knows what from folks I will never meet. And prices should be more competitive. Of course, that will be so until Christmas hits. Then as happened this year, prices may go up. But hey, Amazon listed the MSRP and connected me to a retailer whose markup combined with Amazon shipping worked for a gift to my niece. That was great. Wait, did I just agree with perfect price discrimination?!!? Damn, you Goog! and Amazon! Or is that Happy Holidays! I got what I wanted without fighting through stores.