Category: Technology


The Criminal Law (Like All Information) Wants To Be Free

In the last couple of days, the Pennsylvania House passed legislation making the state’s statutes freely available over the Web. Remarkably, Pennsylvania will be the last state to provide this free and easy access.

It’s hard to believe that only a few years ago, it was actually quite difficult to find state and federal statutes. Sure, they were available in selected public libraries, as well as all law libraries. But law libraries can be a bear to access: in some states, one would have to travel miles to find a law library. And many of these libraries limit public use in one way or another.

When we discuss punishment theory in criminal law, I like to noodle with students about whether, and how, prospective criminals come to learn the law. After all, most theories assume that a defendant has advance notice about what is expected of him and the consequences of lawbreaking. Deterrence theories – essentially, economic punishment models that suggest that higher sentences reduce crime by scaring off potential offenders – all assume that these miscreants can accurately predict their punishment. Putting aside the question of whether offenders act rationally – a serious question for individuals who are working under intense emotion, or the influence of drugs and alcohol – does anyone really know what a second degree burglary is “worth”? Surely there is information flow on the street, but it is far from the perfection assumed in economic modeling.

Obviously, making laws more obvious is much simpler than making potential sentences clear. But the fact that we’re only now completing the task of distributing the easily reproducible information – the statutes themselves – tells you just how much further we’d have to go to provide the information flow needed for criminal sanctions to be even halfway efficient as a deterrent. As Dave suggested a while back (echoing Stefananos Bibas), criminal information markets anyone?


Piercing the Veil of Anonymous Bloggers

Lives of Others Picture.jpgI’m delighted to be guest-blogging at Concurring Opinions, and thanks to the crew here for the invitation! I regularly blog to a much smaller audience at Info/Law (and will cross-post most of these guest appearances over there), but it will be fun to discuss a somewhat wider variety of topics here. That said, it turns out my first entry is at the heart of information regulation.

Brian Leiter notes this news story about a South Korean law which has just taken effect, requiring large web sites to obtain real names and the equivalent of Social Security numbers from everyone who posts content. He compares this approach to that taken in the US where, he says, “there exist only private remedies against Internet sociopaths and misogynistic freaks who hide behind anonymity. I suppose time will tell which is the better approach.”

Personally, I don’t need to wait for the passage of time to criticize the South Korean initiative (which has been under discussion there for some four years). Obviously, this law arises in a cultural context very different from our own, which I believe explains a good deal of the difference in approach. And it may not even be as different as it first appears. But there are principled reasons, distinct from cultural ones, to oppose a “show me your papers” internet.

First and foremost, it should be no surprise that China reportedly is looking at a similar model — as a technique to curb dissent, not just cyberbullying. (If you have seen the film The Lives of Others, pictured above — and you really should see it — you will remember how it portrayed East Germany registering typewriters.) The ability to remain anonymous protects unpopular speakers who might otherwise be unable to spread their ideas. In some countries, anonymous bloggers risk life and limb. Despite massive internet filtering by governments, blogging still provides dissidents a powerful tool. Even in more democratic countries, whistleblowers, political outsiders, and unhappy employees use anonymous blogging to avoid retribution. An outright ban on anonymity will curtail such often-useful speech.

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Pearl of Great Price: Now You’re Cooking with IP!

PearlOyster.jpgIf you’re planning on opening a seafood restaurant soon, watch out for Rebecca Charles, owner of Pearl’s Oyster Bar. She’s suing rival Ed’s Lobster Bar for copying

“each and every element” of Pearl Oyster Bar, including the white marble bar, the gray paint on the wainscoting, the chairs and bar stools with their wheat-straw backs, the packets of oyster crackers placed at each table setting and the dressing on the Caesar salad.

A packet of oyster crackers at a seafood restaurant? What a creative genius!

Seriously, White has some rights based on Two Pesos v. Taco Cabana, a decision that recognized that “trade dress which is inherently distinctive is protectable under [federal law] without a showing that it has acquired secondary meaning”–i.e., that if the look of a restaurant is distinctive, it can sue others for copying the look even if no one particularly associates the look with its originator.

It looks like White is a veteran of more than one restaurant rivalry:

I listened as the regulars [at Pearl Oyster Bar] who stole my seat begged the chef to let them eat at Mary’s Fish Camp, which is owned by her former girlfriend. When they split, one kept Pearl, and the other, in one of the great defiant acts of New York restaurant life, opened a restaurant with nearly the same menu just blocks away.

I suppose revenge is a dish best served cold.

The one claim that the NYT article mentions that I think may be a loser is White’s complaint that Ed’s copied her Caesar salad.

She and her lawyers claim [Ed’s] is made from her own Caesar salad recipe, which calls for a coddled egg and English muffin croutons. She learned it from her mother, who extracted it decades ago from the chef at a long-gone Los Angeles restaurant. . . . And although she taught Mr. McFarland how to make it, she said she had guarded the recipe more closely than some restaurateurs watch their wine cellars. “When I taught him, I said, ‘You will never make this anywhere else,’ ” she insisted.

Seems to me like that Caesar salad would be pretty easy to reverse engineer–and reverse engineering has long been a way to lawfully acquire the know-how behind trade secrets. Moreover, it sounds like this idea is not exactly a secret–other folks may well have “extracted it” from the same source.

My hope in this area, as in so many others, is that we can learn from the French. By and large, they don’t use law to punish culinary copyists, they use norms. As von Hippel and Fauchart show, “the existence of norms-based IP systems means that the usage of information that is freely accessible and not legally protected may be nonetheless restricted to the benefit of innovators.” Magnifique!

Photo Credit: Monceau/Flickr. Will Charles pay royalties to this New Orleans oyster bar if it turns out to have opened before hers?

UPDATE: Mike Madison strikes an appropriately jaded note.

Trumpeting the Telecosm

Many thinkers have touted the revolutionary potential of the “telecosm,” a world of infinite bandwidth capable of transmitting any message anywhere. But I’ve come across few passages as rhapsodic as this:

The network will supply room enough for every sight and sound, every thought and expression that any human mind will ever wish to communicate. It will make possible a wildness of spirit, where young minds can wander in adventurous, irresponsible, ungenteel ways. It will contain not innocence, but a sort of naïve gaiety, a buoyant, carefree feeling, filled with confidence in the future and an unquenchable sense of freedom and opportunity. It will be capitalist civilization at its best.

Can anyone guess where I found this gem of a prophecy (circa 1999)?

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Google Street View: All the World’s a Stage

Yesterday I joined the NPR “Talk of the Nation” program to discuss Google’s privacy policies. The callers were most fascinated by Google’s new “Street View” feature, which lets users “view street level shots of each block.” One said this was obviously not a privacy violation, since it only took photographs of things in public view. But others felt they should be able to go out in public and not worry about some random picture of them (say, leaving a chiropractor’s office) permanently in a Google database.

I had some sympathy for both sides, but ultimately more for the latter. I think it’s one thing when, say, a single photographer on Flickr takes a photograph of someone incidentally with no personally identifiable information. “Permissions culture” has gone to such extremes that it seems unfair to burden shutterbugs with obligations to get clearances from anyone they shoot–and even in this case, there are some limits internationally (“In Québec, a teenage girl successfully sued a photographer for $8,000 after he took her picture without her knowledge, even though she was sitting on the front steps of a public building.”).

But the case of a Google or Yahoo!, with immense, cross-checkable databases, is another matter altogether. We know that government has sought extensive access to these databases. Face recognition technology may reach a point where any image can be traced back to a name or number. I think it safe to assume that just about any surveillance technology applied by the private sector can eventually be coopted by the government if a security threat becomes pressing.

So should we cheer on claims like “intrusion upon seclusion” against Google Street View? I’m not willing to say that, because we have yet to see exactly how it’s being used. (Sadly, we may never get that information from Google, because the company may call it a trade secret.) But I do hope for two things:

1) A realization that technology like this is not simply a product of Google, but can be put to many ends by a security apparatus willing to force corporations to ignore existing privacy laws. We may well want to go in the direction of London’s CCTV, but we should have some architecture for regulating that transition. Someone has to be able to watch the watchers.

2) Some reflection on the types of public activity that are likely to decline when “all the world’s a stage.” Sure, we can catch people robbing banks more easily (or exiting strip clubs); but what happens to protest? Will people think twice about going to an anti-war demonstration if they know the whole thing will be captured, forever, by entities unaccountable to them? On a less political level, will everyday life become more and more a “new American performing reality?” Perhaps Goffman’s idea of the “stage” is about to be extended to every public street in America.

Black Boxes Bite Back

blackbox.jpgAs interest rates jump, piggybacking has become all the rage in “credit repair” circles. For a fee, groups like Instant Credit Builders will let you “borrow” (part of) another person’s credit score by becoming an “authorized borrower” on his cards. Here is ICB’s overheated defense of the practice:

ICB has developed a system to counter the harmful societal impacts of an emerging market called “subprime lending”. Mob-like blood suckers under the umbrella of legitimate lending institutions are targeting those who have poor credit scores but fall short of being beyond credit risk acceptance.

To explain why subprime lenders are in such an opportunistic industry, take this example: The commission payable to a financial adviser or mortgage broker from an actual prime lender on a $100,000 deal yields a broker about $250. Yet the same $100,000 deal using a subprime lender yields them $2,000 to $2,500. This niche market banking industry is getting paid well to enslave most minorities, low-income borrowers, even victims of identity theft with interest rates that can be up to 3.5% higher than average.

Needless to say, mortgage lenders are hoppin’ mad. The godfather of credit scores, FICO, has claimed that “piggy-backing will soon come to an end on its watch.” One irony here is that, as lenders crack down, “they may actually increase demand for some of the services that these Web sites offer.”

A lot of the commentary on these sites has been harsh, but let me offer something like an “unclean hands” defense. Credit scores have long come under attack for having a “a disparate impact on poor and minority populations.” Moreover, the scoring is opaque; scorers claim that transparency would undermine their “trade secrets.” So consumers are navigating a world where they can have only a vague idea of the rules. Lenders shouldn’t be surprised when entrepreneurs reverse-engineer the ratings system and the technology bites back.

Moreover, these rules themselves may be self-fulfilling prophecies: if you decree that one missed $10 payment for a family of 4 earning $30,000 per year lowers their credit score by 200 points, they probably are going to end up being more likely to default because they are going to be paying much more in interest for any financing they get. Again, because the scores are black boxes, we have no assurance that the companies that offer them try to eliminate such endogenicity or whether they actually try to profit from such self-fulfilling prophecies.

As long as credit ratings are so shrouded in secrecy, the lenders who rely on them should expect gaming of the system. Watch for a debate over “black hat” vs. “white hat” credit repair builders as controversial (and interminable) as that now occurring in the world of search engine optimization.

Expensive Tastes and Bitrates

PrincessPea.jpg“Expensive tastes” pose a problem for egalitarians. If we want to make everyone equally happy, we’ll have to devote far more resources to the “pea-phobic princesses” than to hardier folks inured to suffering. On the other hand, if someone isn’t responsible for their expensive tastes, how different are they from the “eggshell skull” plaintiff so protected by tort law?

Perhaps the key moral issue here is to avoid cultivating expensive tastes. That might lead us to applaud China’s new discouragement of luxury goods:

Xinhua, the government’s official mouthpiece, warned that big spenders risked becoming “intoxicated with comfort” and sinking “into depravity”. Last week the mayor of Beijing, Wang Qishan, went a stage further by calling for controls on outdoor advertisements that promote . . . “ultra-distinguished” products, on the grounds that they “encourage luxury and self-indulgence, which are not conducive to harmony.”

It’s “glorious to get rich,” but not to flaunt it. Just think of how many Americans thought of folksy Sam Walton as being “just like them.”

On the other hand, the expensive tastes of the overrefined can subsidize the rest of us. Though a declining model in the airline industry, it might reemerge in music. Consider this news on Apple’s new DRM-free files:

The Apple iTunes store, the largest seller of music downloads, began selling tracks from EMI Music yesterday without any restrictions on copying, for a slightly higher price than usual, $1.29 instead of 99 cents. To sweeten the deal, those tracks have better sound, with a bitrate of 256 kilobits per second (kbps), up from the standard 128 kbps. Apple has gone so far as to say that this results “in audio quality indistinguishable from the original recording.”

Hooray for the “golden ears,” whose supersensitivity to quality music may end up buoying an industry driven to distraction by declining sales.

But before we get too comfortable with that model, consider this cautionary tale quoted by James Boyle:

It is not because of the few thousand francs which would have to be spent to put a roof over the third-class carriages or to upholster the third-class seats that some company or other has open carriages with wooden benches ….What the company is trying to do i s to prevent the passengers who can pay the second-class fare from travelling third class; it hits the poor, not because it wants to hurt them, but to frighten the rich . . . . And it is again for the same reason that the companies, having proved almost cruel to third-class passengers and mean to the second-class ones, become lavish in dealing with first-class passengers. Having refused the poor what is necessary, they give the rich what is superfluous.

Having just endured another terrible Amtrak travel experience, that seems as true today as it did in 1962.

Illustration credit: Edmund Dulac.

The Right to Delete’s Infrastructure

clippy.jpgShould every keystroke you ever enter into your computer be preserved for inspection forever? Worry over that possibility has led to some very interesting scholarship, including Paul Ohm on the right to delete. Ohm has suggested that a right to delete is akin to the property right to destroy what one owns, for “when an owner loses control of a copy of her data, she loses the ability to dispose of or alter that data.” By contrast, Ohm notes Orin Kerr ‘s “worries that during the time after [data is captured] and before it is analyzed, the Fourth Amendment may not apply since the owner of the original drive has not been deprived of a possessory interest.”

I don’t know enough about the relevant Fourth Amendment law to comment on that dispute, but I do find Google’s recent commitment to deleting personally identifiable data from search history records (after about 2 years) to be an interesting development. Jack Balkin has noted various “infrastructural requirements” for the enjoyment of certain rights. He states:

[A]n infrastructure of free expression. . . . includes government policies that promote the creation and delivery of information and knowledge. It concerns government policies that promote transparency and sharing of government created knowledge and data. It involves government and private sector investments in information provision and technology, including telephones, telegraphs, libraries, and Internet access. It includes policies like subsidies for postal delivery, education, and even the building of schools.

The right to delete appears to require commitment by search engines and other massive databases to allow some “cataloguee” discretion over what to retain and what to delete from records. The big question is whether the market will ultimately reward or punish search engines that put that infrastructure in place. As Elizabeth van Couvering has noted, current trends do not bode well for the development of public-minded search engines:

Resources in search engine development are overwhelmingly allocated on the basis of market factors or scientific/technological concerns. Fairness and representativeness, core elements of the journalists’ definition of quality media content, are not key determiners of search engine quality in the minds of search engine producers.

As with digital music, we may need Europe to lead the way. But perhaps there is one powerful constituency fully behind the right to delete:

From 2001 to 2004, the RNC’s highly unusual “document retention” policy was to intentionally destroy all e-mails that were more than 30 days old. In the summer of 2004, due to “unspecified legal inquiries,” the RNC changed its policy by allowing — but not mandating — the indefinite retention of e-mails sent and received by White House staffers on their RNC accounts.

Perhaps eventually technology to preserve data will become more transparent.

Is MySpace Exploiting You?

MySpaceGreaseMonkey.jpgThe Web 2.0 backlash has begun. From the right, Andrew Keen voices a cultural conservatism uneasy with the new egalitarianism of networked media, claiming that the “media and culture industries’ [purpose] . . . is to discover, nurture, and reward elite talent.” He laments the “Napsterization” of old gatekeepers and their replacement by new context providers like FaceBook, MySpace, Google, and ochlocratic intermediaries. I see where he’s coming from, though I think Keen is way too quick to conflate media conglomerates and nonprofits as guarantors of quality.

On the left, Trebor Scholz worries that these new intermediaries recapitulate old patterns of exploitation. The labor of millions on their MySpace page results, most often, in nothing paid to them, and vast sums going to Rupert Murdoch. Scholz questions whether Web 2.0 really brings the decentralization its proponents hope for:

The most central sites of the World Wide Web create massive surplus value and small startups are frequently bought out by the Walmarts of the Internet (NewsCorp, Yahoo, Google) the very moment that they attract sufficient numbers of page views. People spend most time on the sites of these giants and not in the “mom and pop stores.” Almost 12 percent of all time spent by Americans online is spend on MySpace.

Scholz admits that “The picture of net publics being used is . . . complicated by the fact that participants undeniably get a lot out of their participation. There is the pleasure of creation and mere social enjoyment. . . . They share their life experiences and archive their memories. They are getting jobs, find dates and arguably contribute to the greater good.” Nevertheless, he’s raising some interesting questions about the very nature of labor and “just enrichment” in the digital age.

So are social media megasites exploitative?

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Student Legal Services at NC State and RIAA File-Swapping

According to an editorial at TechnicianOnline, the website for the NC State student paper, Student Legal Service at NC State is representing students in actions by the RIAA over file swapping. It is the first I’ve heard of a university providing free legal services to students against the recording industry in these suits, although I can’t claim to have followed these cases systematically. In the end, this representation will probably not change the outcome of these cases dramatically, but it may discourage plaintiffs from overreaching against legally unsophisticated defendants.