Category: Social Network Websites


Love’s Labour’s Lost in Cyberspace

Early this month, a class of subscribers sued the service for breach of contract, breach of the implied covenant of good faith, and negligent misrepresentation in federal district court in the Northern District of Texas.  The complaint alleges that while claims to have “millions of active subscribers, well over half of the profiles on its site belong to inactive members who have canceled their membership or allowed their subscriptions to lapse and/or are fake and fraudulent profiles posted by scammers and others.”  It asserts that as for inactive members, “takes virtually no action to remove these profiles . . . for months and sometimes years,” only removing them after former subscribers call to complain.  As to fake and fraudulent profiles, the complaint states that “makes little to no effort to vet, police, or remove these profiles.”

According to the complaint, intentionally failed to remove the profiles of inactive and former subscribers in order to induce members of the class action “to either become or remain paying members.”  The complaint claims that (1) “routinely and intentionally represents that there are significantly more active members on the website than there actually are,” (2) falsely labels profiles as “active within [#] days” when the accounts belong to canceled and/or inactive accounts,” (3) sends “former and inactive members ‘winks’ informing them that a potential match is trying to contact them in order to get them to renew their subscriptions (only to find out after they do so that the supposed seeker does not exist), (4) fails “to effectively vet new profiles to determine whether they are fake or fraudulent despite easily discernible ‘red flags’ (including repeated use of imagery and language, and use of notorious IP address origins), and (5) misleads users into believing that the site has equal numbers of male and female members while the “makeup of actual active users is heavily skewed towards single males.”

To support their allegations, Plaintiffs point to changes in the site’s architecture.  For instance, whereas members could themselves hide their profiles after becoming inactive members from 2006 to 2007, only employees could block a member’s profile from view beginning in 2008.  The complaint also recounts the testimony of former employees who attest that the company’s database included a “huge” number of “filler profiles.”  As for the complaint’s allegation that failed to police the site for fraudulent members, the plaintiffs seemingly point to language in the Terms of Use agreement that permits to review and delete content that violates its terms.  They also suggest that “computer technologies exist that would allow the company to effectively and efficiently police its website for the benefit and safety of its customers.” Read More

Can Suspicious Activity Reports Trigger Health Data Gathering?

In an article entitled “Monitoring America,” Dana Priest and William Arkin describe an extraordinary pattern of governmental surveillance. To be sure, in the wake of the attacks of 9/11, there are important reasons to increase the government’s ability to understand threats to order. However, the persistence, replicability, and searchability of the databases now being compiled for intelligence purposes raise very difficult questions about the use and abuse of profiles, particularly in cases where health data informs the classification of individuals as threats.
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Rights and Responsibilities of Digital Citizenship

In response to a previous post, Seth Finkelstein asked me to develop the implications of a conception of digital citizenship, and rightly so.  This post begins by explaining which intermediaries Helen Norton and I address and then develops our conception of digital citizenship in a bit more detail.  A follow-up post will provide preliminary suggestions about how intermediaries could, and should, educate users about their rights and responsibilities as digital citizens.

As Jack Balkin highlights, the “informational filter, not information, is king” in our digital age.  Internet intermediaries wield significant influence over our information landscape in much the same way that mass media does.  Search engines, such as Google, Microsoft, and Yahoo, determine “what we read” and “who gets heard” by producing links to content in response to user requests.  Popular social media sites, such as Facebook, YouTube, and Digg, structure online environments that enable large groups of individuals to connect with each other.  While highlighting certain content and voices, Internet intermediaries downplay, block, and delete others.  Christopher Yoo has extolled intermediaries’ exercise of editorial discretion as “promot[ing] important free speech values by helping shield audiences from unwanted speech and by helping them identify and access desired content.”  As he observes, “the image of the Internet as an unintermediated experience, in which speakers speak directly to audiences without passing through any gatekeepers, is more myth than reality.  The real question is not whether some actor, but rather which actor, will serve as the intermediary.”

Commentators have expressed concern about governmental efforts to enlist intermediaries as “proxy censors to control the flow of information.”  In Intermediaries and Hate Speech: Fostering Digital Citizenship for the Information Age (forthcoming Boston University Law Review 2011), Helen Norton and I focus exclusively on intermediaries’ purely voluntary decisions to address hate speech.  As private entities, intermediaries can, and do, refuse to address cyber hate.  Twitter has taken this position.   Rather than taking a neutral position vis-a-vis online hatred, other intermediaries encourage it.  Consider the social network site Hate Book whose motto is “Post something you hate!” and thousands of websites, blogs, social network sites, and the like designed to spread hate.  Our conception of digital citizenship addresses intermediaries that choose to prohibit hateful content (and those might do so in the future) rather than intermediaries that ignore or support it.  Pursuant to terms of service agreements and community guidelines, intermediaries remove, denounce, or ignore instances of cyber hate.  Yet beyond vaguely-worded prohibitions of “hateful or offensive” speech, intermediaries often provide little explanation or consistency for their actions.  They leave unstated and perhaps unexplored how their decisions regarding cyber hate impact citizens whose capability to participate meaningfully offline and online depends upon their inclusion in networked spaces.  Intermediaries ought to teach users how to be responsible and respected digital citizens. Read More


Virtual Perils of Cyber Hate and the Need for a Conception of Digital Citizenship

Although intermediaries’ services can facilitate and reinforce a citizenry’s activities, they pose dangers that work to undermine them.  Consider the anonymous and pseudonymous nature of online discourse.  Intermediaries permit individuals to create online identities unconnected to their legal identities.  Freed from a sense of accountability for their online activities, citizens might engage in productive discourse in ways that they might not if directly correlated with their offline identities.  Yet the sense of anonymity breeds destructive behavior as well.  Social science research suggests that people behave aggressively when they believe that they cannot be observed and caught.  Destructive online behavior spills offline, working a fundamental impairment of citizenship.

For instance, digital expressions of hatred helped inspire the 1999 shooting of African-Americans, Asian-Americans, and Jews in suburban Chicago by Benjamin Smith, a member of the white supremacist group World Church of the Creator (WCOTC) that promotes racial holy war.  Just months before the shootings, Smith told documentary filmmaker Beverly Peterson that: “It wasn’t really ‘til I got on the Internet, read some literature of these groups that . . . it really all came together.”  More recently, the Facebook group Kick a Ginger Day urged members to get their “steel toes ready” for a day of attacking individuals with red hair. The site achieved its stated goal: students punched and kicked children with red hair and dozens of Facebook members claimed credit for attacks.

Cyber hate can produce so much psychological damage as to undermine individuals’ ability to engage in public discourse.  For instance, posters on a white supremacist website targeted Bonnie Jouhari, a civil rights advocate and mother of a biracial girl.  They revealed Ms. Jouhari’s home address and her child’s picture.  The site showed a picture of Ms. Jouhari’s workplace exploding in flames next to the threat that “race traitors” are “hung from the neck from the nearest tree or lamp post.”  Posters included bomb-making instructions and a picture of a hooded Klansman holding a noose.  Aside from moving four times, Ms. Jouhari and her daughter have withdrawn completely from public life; neither has a driver’s license, a voter registration card or a bank account because they don’t want to create a public record of their whereabouts.

Search engines also ensure the persistence and production of cyber hate that undermines citizens’ capability to engage in offline and online civic engagement.  Because search engines reproduce information cached online, people cannot depend upon time’s passage to alleviate the damage that online postings cause.  Unlike leaflets or signs affixed to trees that would decay or disappear not long after their publication, now search engines index all of the content hosted by social media intermediaries, producing it instantaneously. Read More


Facebook and Google: Twenty-First Century Institutions for Civic Engagement

Democracy is often said to work best when citizens build networks of social interaction and trust.  Civic engagement informs the inputs into the political process.  So, too, it facilitates the formation of social capital, i.e., interpersonal connections and the norms of trust and reciprocity that arise from them.  Social capital allows groups to overcome collective action problems so that they can “accomplish things together.”  Moreover, civic engagement allows people to see their lives as entwined with others, to “feel [themselves] one of the public,” and “to weigh interests not [their] own.”  In turn, citizens inculcate “habits of cooperation and public-spiritedness.”  Civic engagement reinforced Alexis de Tocqueville’s “self-interest properly understood”—i.e., weighing interests other than one’s own—and encouraged “responsible citizenship.”

As Benjamin Barber explains, mediating institutions “give expression to the idea of citizenship.”  This is especially so when institutions cultivate norms of trust across lines of social division (often referred to as “bridging ties”).  In Amy Gutmann’s view, the “more economically, ethnically, and religiously heterogeneous the membership of an association is, the greater its capacity to cultivate the kind of public discourse and deliberation that is conducive to democratic citizenship.”  According to Neil Netanel, a liberal democratic polity needs citizens to encounter competing ideals so that they can test their commitments and gain empathy for those with whom they disagree.

Alexis de Tocqueville emphasized the importance of townships and civic associations for citizens to acquire the skills and habits of dialogue.  John Dewey found schools uniquely situated to teach children and adults about the social meaning of community.  In his view, schools brought diverse people together in ways that “introduce deeper sympathy and wider understanding.”  For Cynthia Estlund, the workplace stood  as the most important site for the formation of social and political views because it permits informal discourse among people “who are both connected with each other, so that they are inclined to listen, and different from each other, so that they are exposed to diverse ideas and experiences.”  She also emphasized its atmosphere of enforced civility and equality, which allows diverse voices to be heard.

Online intermediaries constitute important twenty-first century mediating institutions.  They extend workplaces, schoolhouses, and community centers to digital spaces.  In this way, they supplement real-space exchanges of information and opinion with virtual ones.  Companies encourage employees to use social network sites to deepen workplace relationships.  Workers, in turn, discuss issues in person and in online postings.  Student organizations meet face-to-face in classrooms and in social network groups.  Neighborhood communities combine offline activities with online ones.  Google’s Blogger hosts blogs designed to facilitate commentary on community events.  In these and other infinitely different ways, users of online intermediaries perform their roles as citizens.

Worth recognizing are the potential democratic goods facilitated by intermediaries.  Online intermediaries continue discussions among diverse groups of workers and students who are inclined to listen to each other.  Because social media brings the personal lives of individuals to the fore, it has the capacity to deepen empathy for different backgrounds.  Of virtual communications amongst workers, Cynthia Estlund notes: Because the workplace would provide face-to-face interactions, “electronic communications can expand and equalize work relationships.”  Social science research shows that social network sites support loose social ties that allow users to maintain networks of relationships.  A 2007 study found that Facebook does indeed cultivate bridging social capital.  Because intermediaries enable groups to combine real-space activities with virtual ones, they impact civic engagement through their architecture and content choices. Read More


Users of Online Intermediaries as Citizens

Most naturally, social media providers and search engines see their users as consumers.  As commercial enterprises, they aim to reap profits, which users help secure with advertising and information revenue.  Yet they should also view their users as citizens.  Because intermediaries are designed to enable public discourse, they facilitate the formation of a citizenry.

Citizenship is not simply a matter of legal status enjoyed by members of a body politic, though it serves that crucial role.  It refers to one’s engagement in public life as well.  Public participation is often viewed as essential for members of a democracy to form a citizenry.  As John Dewey wrote, citizenship extends beyond the legal dimension to include “all of the relationships . . . involved in membership in a community.”  For John Stuart Mill, citizens are individuals who develop their faculties through active engagement in public life.  In this sense, citizenship “provides what other roles cannot, namely an integrative experience which brings together the multiple role activities of the contemporary person and demands that the separate roles be surveyed from a more general point of view.”

Online intermediaries provide essential tools for citizenship.  Individuals rooted in our national polity connect, debate, and pursue common interests on intermediaries’ platforms.  Seeing users as citizens is important for intermediaries interested in understanding what is at stake when they host and index cyber hate.  This leads to the question of how intermediaries impact citizenry in the Information Age, to which I will turn in my next post.


Digital Lives of 2.0 People, Not Locked In But Extended Out

Reviewing the movie The Social Network and Jaron Lanier’s book You Are Not a Gadget: A Manifesto in this month’s New York Review of Books, Zadie Smith warns readers of the perils of social network sites like Facebook where “life is turned into a database.”  According to Smith, Facebook “locks us” into a system designed by a college nerd to resemble “a Noosphere, an Internet with one mind, a uniform environment in which it genuinely doesn’t matter who you are, as long as you make ‘choices’ (which means, finally, purchases).”  Smith writes:

“When a human being becomes a set of data on a website like Facebook, he or she is reduced.  Everything shrinks.  Individual character.  Friendships.  Language. Sensibility.  In a way, it’s a transcendent experience: we lose our bodies, our messy feelings, our desires, our fears.  It reminds me that those of us who turn in disgust from what we consider an overinflated liberal-bourgeois sense of self should be careful what we wish for: our denuded networked selves don’t look more free, they just look more owned.”

Smith worries about her students and other “2.0 kids.”  She contrasts “1.0 people” who use social media tools to connect with others in an outward-facing way with “2.0 kids” who employ them to turn inward and towards the trivial.  2.0 people, Smith fears, are embedded in the software, avatars who don’t realize that “what makes something fully real is that it is impossible to represent it to completion.”  She wonders: “what if 2.0 people feel their socially networked selves genuinely represent them to completion?”  In Smith’s view, Mark Zuckerberg tamed “the wild west of the Internet” to “fit the suburban fantasies of a suburban soul,” risking the extinction of the “private person who is a mystery to the world and–which is more important — to herself.”

Smith’s review recalls Neil Postman’s critique of television culture and Benjamin Barber’s warnings about contemporary consumerism.  While television helped us amuse ourselves to death and pervasive pop culture produces shoppers, not thinkers, social network sites turn youth culture into over-sharing, unthinking, eager-to-please avatars who “watch the reality-TV show Bride Wars because their friends are.”  Yet this can’t be the whole story.  Whether 41 or 21, social network participants live in the real world, integrating their online activities seamlessly into their daily lives.  Far more goes on in social network sites like Facebook than sharing information to “make others like you” as Smith suggests.  On Facebook and other popular social media sites, people join groups of every stripe.  They work, as Miriam Cherry’s terrific new article Virtual Work addresses.  They build  reputations in ways that can enhance offline careers.  They join study groups.  In many respects, social media sites provide platforms for genuine participation far more than just Government 2.0 engagement.  Far from deadening the everyday citizen, social media platforms can resemble Alexis de Toqueville’s town meeting, John Dewey’s schools, and Cynthia Estlund’s workplace.  Of course, citizenship participation online is different–it is not the face-to-face interaction envisioned by Toqueville, Dewey, and Estlund.  But even with the challenges brought by internet-mediated interactions, 2.0 kids are more than denuded avatars.

Health Privacy Paradigm Shift: From Consent to Reciprocal Transparency

Computational innovation may improve health care by creating stores of data vastly superior to those used by traditional medical research. But before patients and providers “buy in,” they need to know that medical privacy will be respected. We’re a long way from assuring that, but new ideas about the proper distribution and control of data might help build confidence in the system.

William Pewen’s post “Breach Notice: The Struggle for Medical Records Security Continues” is an excellent rundown of recent controversies in the field of electronic medical records (EMR) and health information technology (HIT). As he notes,

Many in Washington have the view that the Health Insurance Portability and Accountability Act (HIPAA) functions as a protective regulatory mechanism in medicine, yet its implementation actually opened the door to compromising the principle of research consent, and in fact codified the use of personal medical data in a wide range of business practices under the guise of permitted “health care operations.” Many patients are not presented with a HIPAA notice but instead are asked to sign a combined notice and waiver that adds consents for a variety of business activities designed to benefit the provider, not the patient. In this climate, patients have been outraged to receive solicitations for purchases ranging from drugs to burial plots, while at the same time receiving care which is too often uncoordinated and unsafe. It is no wonder that many Americans take a circumspect view of health IT.

Privacy law’s consent paradigm means that, generally speaking, data dissemination is not deemed an invasion of privacy if it is consented to. The consent paradigm requires individuals to decide whether or not, at any given time, they wish to protect their privacy. Some of the brightest minds in cyberlaw have focused on innovation designed to enable such self-protection. For instance, interdisciplinary research groups have proposed “personal data vaults” to manage the emanations of sensor networks. Jonathan Zittrain’s article on “privication” proposed that the same technologies used by copyrightholders to monitor or stop dissemination of works could be adopted by patients concerned about the unauthorized spread of health information.
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Scholarship 2.0: The New Frontier?

I have been advising the Maryland Law Review for some time now and this year’s Board has been particularly creative in their thinking about scholarship and its potential impact.  They have an interesting idea for the future of legal scholarship, one that I believe worth sharing and discussing. The Maryland Law Review currently publishes in print and online professional and student pieces and would like to ensure that the pieces facilitate ongoing dialogue.   In a turn that I will call Scholarship 2.0, the Maryland Law Review would like to harness interactive technologies on their website to permit readers to engage with the work and to post videos on the topic.  As the Board has explained to me, they would like to to use technology “not only to spread the ideas expressed in the pieces, but also to provide an opportunity for the work to change, grow, and evolve as more people are exposed and have a chance to contribute to the conversation.”

To that end, the Maryland Law Review will soon begin to utilize technologies to begin that conversation, including posting videos of interviews with professor, or taped debates between them, regarding articles.  Readers will have a chance to take part in the conversation through a Comment feature.  As the Editor in Chief Maggie Grace and Senior Online Articles Editor Ted Reilly told me: “The best products of academia are not closed from debate or question, but rather are discussed, challenged, and strengthened by wider discourse.  It is our hope that with the addition of these technologies we can foster dialogues that help viewers pose questions, challenge accepted notions, share novel ideas, and develop a greater understanding of law and its application.”  How else might the Maryland Law Review put this idea into practice?  Any thoughts or suggestions for my enterprising students?


Future of the Internet Symposium: The Role of Infrastructure Management in Determining Internet Freedom

Last week, Facebook reportedly blocked users of Apple’s new Ping social networking service from reaching Facebook friends because the company was concerned about the prospect of massive amounts of traffic inundating its servers.  This is precisely the type of architectural lockdown Jonathan Zittrain brilliantly portends in The Future of the Internet and How to Stop It. Contemplating this service blockage and re-reading Jonathan’s book this weekend have me thinking about the role of private industry infrastructure management in shaping Internet freedom.

The Privatization of Internet Governance

I’m heading to the United Nations Internet Governance Forum in Vilnius, Lithuania, where I will be speaking on a panel with Vinton Cerf and members of the Youth Coalition on Internet Governance about “Core Internet Values and the Principles of Internet Governance Across Generations.” What role will “infrastructure management” values increasingly play as a private industry ordering of the flow of information on the Internet? The privatization of Internet governance is an area that has not received enough attention.  Internet scholars are often focused on content.  Internet governance debates often reduce into an exaggerated dichotomy, as Milton Mueller describes it, between the extremes of cyberlibertarianism and cyberconservativism. The former can resemble utopian technological determinism and the later is basically a state sovereignty model that wants to extend traditional forms of state control to the Internet.

The cyberlibertarian and cyberconservative perspectives are indistinguishable in that they both tend to disregard the infrastructure governance sinews already permeating the Internet’s technical architecture.  There is also too much attention to institutional governance battles and to the Internet Governance Forum itself, which is, in my opinion, a red herring because it has no policy-making authority and fails to address important controversies.

Where there is attention to the role of private sector network management and traffic shaping, much analysis has focused on “last mile” issues of interconnection rather than the Internet’s backbone architecture.  Network neutrality debates are a prime example of this.  Another genre of policy attention addresses corporate social responsibility at the content level, such as the Facebook Beacon controversy and the criticism Google initially took for complying with government requests to delete politically sensitive YouTube videos and filter content. These are critical issues, but equally important and less visible decisions occur at the architectural level of infrastructure management.  I’d like to briefly mention two examples of private sector infrastructure management functions that also have implications for Internet freedom and innovation: private sector Internet backbone peering agreements and the use of deep packet inspection for network management.

Private Sector Internet Backbone Peering Agreements

For the Internet to successfully operate, Internet backbones obviously must connect with one another.  These backbone networks are owned and operated primarily by private telecommunications companies such as British Telecom, Korea Telecom, Verizon, AT&T, Internet Initiative Japan and Comcast.  Independent commercial networks conjoin either at private Internet connection points between two companies or at multi-party Internet exchange points (IXPs).

IXPs are the physical junctures where different companies’ backbone trunks interconnect and exchange Internet packets and route them toward their appropriate destinations.  One of the largest IXPs (based on throughput of peak traffic) is the Deutscher Commercial Internet Exchange (DE-CIX) in Frankfurt, Germany.  This IXP connects hundreds of Internet providers, including content delivery networks and web hosting services as well as Internet service providers.  Google, Sprint, Level3, and Yahoo all connect through DE-CIX, as well as to many other IXPs.

Other interconnection points involve private contractual arrangements between two telecommunications companies to connect for the purpose of exchanging Internet traffic. Making this connection at private interconnection points requires physical interconnectivity and equipment but it also involves agreements about cost, responsibilities, and performance. There are generally two types of agreements – peering agreements and transit agreements. Peering agreements refer to mutually beneficial arrangements whereby no money is exchanged among companies agreeing to exchange traffic at interconnection points.  In a transit agreement, one telecommunications company agrees to pay a backbone provider for interconnection. There is no standard approach for the actual agreement to peer or transit, with some interconnections involving formal contracts and others based upon verbal agreements between companies’ technical personnel.

Interconnection agreements are an unseen regime.  They have few directly relevant statutes, almost no regulatory oversight, and little transparency in private contracts and agreements.  Yet these interconnection points have important economic and implications to the future of the Internet.  They certainly have critical infrastructure implications depending on whether they provide sufficient redundancy, capacity and security.  Disputes over peering and transit agreements, not just problems with physical architecture, have created network outages in the past.  The effect on free market competition is another concern, related to possible lack of competition in Internet backbones, dominance by a small number of companies, and peering agreements among large providers that could be detrimental to potential competitors. Global interconnection disputes have been numerous and developing countries have complained about transit costs to connect to dominant backbone providers.  The area of interconnection patents is another emerging concern with implications to innovation.  Interconnection points are also obvious potential points of government filtering and censorship.  Because of the possible implications to innovation and freedom, greater transparency and insight into the arrangements and configurations at these sites would be very helpful.

Network Management via Deep Packet Inspection

Another infrastructure management technique with implications to the future of the Internet is the use of deep packet inspection (DPI) for network management traffic shaping.  DPI is a capability manufactured into network devices (e.g. firewalls) that scrutinizes the entire contents of a packet, including the payload as well as the packet header.  This payload is the actual information content of the packet.  The bulk of Internet traffic is information payload, versus the small amount of administrative and routing information contained within packet headers.  ISPs and other information intermediaries have traditionally used packet headers to route packets, perform statistical analysis, and perform routine network management and traffic optimization.  Until recent years, it has not been technically viable to inspect the actual content of packets because of the enormous processing speeds and computing resources necessary to perform this function.

The most publicized instances of DPI have involved the ad-serving practices of service providers wishing to provide highly targeted marketing based on what a customer views or does on the Internet.  Other attention to DPI focuses on concerns about state use of deep packet inspection for Internet censorship. One of the originally intended uses of DPI, and still an important use, is for network security. DPI can help identify viruses, worms, and other unwanted programs embedded within legitimate information and help prevent denial of service attacks. What will be the implications of increasingly using DPI for network management functions, legitimately concerned with network performance, latency, and other important technical criterion?

Zittrain discusses how the value of trust was designed into the Internet’s original architecture.  The new reality is that the end-to-end architectural principle historically imbued in Internet design has waned considerably over the years with the introduction of Network Address Translation (NATs), firewalls, and other networks intermediaries. Deep packet inspection capability, engineered into routers, will further erode the end-to-end principle, an architectural development which will have implications to the future of the Internet’s architecture as well as to the future of individual privacy and network neutrality.

As I head to the Internet Governance Forum in Vilnius, Lithuania, Zittrain’s book is a reminder of what is at stake at the intersection of technical expediency and Internet freedom and how private ordering, rather than governments or new Internet governance institutions, will continue to shape the future of the Internet.