Berkman Summer Interns 2008

Last week(-ish), several of the interns and I were speaking about music copyright. The conversation started when I innocently asked if the Beatles cover I have up on my MySpace is legal. I know that there are clearly legal processes to complete in order to sell a cover song, but I was not selling it. I simply wanted to share my version of With A Little Help From My Friends with some of my friends. (And probably some lurkers and stalkers.)

We came to several main points of contention:
-Whether it is different for streaming music (like on MySpace, or YouTube, etc.) vs. downloading a hard copy. However, I was informed that it is apparently fairly easy to (illegally) copy music playing out of your speakers onto your computer.
-Whether it is different that I was not charging money.

I’ve been doing more research on whether my interpretation is fair use, or whether it is legal for people to be able to listen on-demand to my music, or whether it is legal for MySpace to have a copy of my song on their server. This post will probably get updated soon after I get to the correct section in the book I just purchased on “The Future of the Music Business: How to Succeed with the New Digital Technologies” by Steve Gordon.

I find these issues so fascinating that I am in the process of formulating it into a Government thesis. Any input is of course welcome.

I was experimenting with the features of this blog, so here is an embedded copy (also hopefully legal):
With A Little Help From My Friends – Ali Sternburg

Zack McCune (of RIAA lawsuit fame) blogged yesterday’s rowing outing with Adam Holland.

in the spirit of the the olympics, how i learned to row from an olympic all-star: “”

(Thanks Zack.)

A year of law school hadn’t broken me of my long training in physics and engineering, so I first thought that the Internet Safety Technical Task Force, my initial Berkman project, was about developing new technology to protect children from harm on the internet. I knew a few things about developing technology, so I was ready to dive in—until the project director at the Cyberlaw Clinic corrected me. We were not developing technology; we were identifying and assessing it. In my experience, that meant evaluating the technology against performance specifications—again something I was very familiar with. Of course, that wasn’t right either.

Not until I heard danah boyd and Michele Ybarra speak about snuff sites and pro ana/pro mia sites did I finally realize what the Task Force project is really about. See Michele’s presentation. The focus is not on the technology itself and how the technology acts on society, but on how people use the technology as part of living. People use the technology to change their own lives and the lives of others.

It was a revelation to me that the social implications of technology meant more than just the abstract, aggregate effects of new technology on the national economy. The free flow of knowledge over the internet facilitates commercial innovation, which in turn creates wealth. To me, that was the kind of influence that the internet has on society.

That view ignores the intimate effects of the participatory web. It enables citizen journalists, empowers grass-roots activists, evades repressive governments, and creates valuable, globe-spanning communities. That people have integrated technology deeply into their lives also has a dark side, which created the need for an Internet Safety Technical Task Force in the first place.

No example of that dark side is starker than the case of Lori Drew and 13 year-old Megan Meier. The Cyberlaw Clinic helped write an amicus brief in the Drew case this summer. See Sam Bayard’s post about the brief. Lori Drew, the mother of Megan’s schoolmate, allegedly posed as “Josh” in flirtatious electronic messages to Megan, befriended her, and then abruptly cut off their month-long relationship with words to the effect that the world would be a better place without Megan in it. That day Megan hanged herself in her bedroom closet.

According to these allegations, Lori Drew used the internet to call up an apparition so lifelike and powerful that it drove Megan to suicide. This is the power of a person wielding technology. It raises questions, not so much about any quality inherent in the technology itself, but instead about the moral decisions that people make in using the technology. Just as I learned in the Internet Safety Technical Task Force, the issue is not the technology itself; the issue is how people use the technology.

Jim

So I’ve been doing quite a lot of reading, as many of you know, on copyright and fair use.

Without getting too exhaustive — see me in person if you want the sledgehammer of facts    — the typicalfair use analysis can be divided into one of two groups.  (1) Is the use(sufficiently) transformative?  and (2)  does the use have a negative economic impact on the original creator / rights holder.

Setting side the second of those two, consider “transformation”.    That’s when we are talking about whether the new use that borrowed and copied changed what it borrowed sufficiently enough to be considered effectively a “new thing”.  That is, was there just some copying going on, or was there substantial repurposing.  Can the copier be accurately described as  a new, even if secondary, creator?

People are all over the spectrum about this.  Some go so far as to say that all but the most radical transformations are  infringing copying.  this seems ot beg th equestion.  If it has been changed so much you can discern no trace of the original, how can you possibly assert there was copying at all, much less defensible copying.

On the other hand, in the same way that “you canot step into the same river twice”  and “no reader reads the same text”  some argue that merely copying and sharing a creative object transforms it into something new.  this is persuasive and fascinating, but I would not recommend trying it woith a judge.  Ha!

But it is this latter idea that intrigues me with respect to education and teaching, which is the focus of the project on which I am working.

I therefore throw this question out for contemplation and discussion.

If a work (not a work written explicitly for classroom use, we’ll leave that aside for now)  is  copied for the purposes of presenting it in a pedagogical context, shouldn’t that alone be sufficient repurposing / recontexualization for a fair use argument?

Doesn’t education ( at least in the humanities)  presume criticism and cultural commentary on the materials being taught?

I’m not even going to get into the public benefit / purpose of copyright in general.

That is to say, it seems to me that  in an educational context, a strong argument can be made for fair use  with respect to almost any use, short, perhaps of wholesale copying of entire novels.

Thoughts?

Adam

Berkman Fellow Gene Koo hosted a great discussion about finances and games last night as a part of his Valuable Games series. The big takeaway was that it’s quite difficult to make a game that promotes good financial practices, since games feed you instant gratification and that’s absolutely not a thing that encourages longterm planning.

One of the simpler approaches to gaming discussed was compelling saving by charging for play time, coin-op style. You rig your kid’s xbox up to a laundromat-style quarter acceptor, and deposit any money into 2-year savings bonds. Here’s a coin-op wifi node. No real values are transmitted with that, though.

A different approach, not really a game, involves parsing your spending history for patterns and pushing reminders to you just in time. So if you consistently spend $3 between 9 and 10am on weekdays at a place called “Primo Coffee”, the system sends you a text message at 8:50am that says “You can save $3 by not spending money at Primo Coffee today”. And if you do it, you get a neat congratulatory message at 10:10am. (Adam Holland might suggest that it also reward you with a new piece of gear for your character on some MMORPG)

Or what if regular exercise on a bicycle connected to Mario Kart on the Wii at an approved gym reduced your insurance premiums?

D2D Fund, a nonprofit, is looking at running non-digital “games”with the same allure as the lottery through local credit unions (they’re starting up in Michigan), but lottery laws make it difficult for an institution other than the state to take peoples’ money through games of chance. Prize Linked Savings

-Matt Hampel

Last week I was listening to the radio and heard a crazy electro-pop song I had never heard – a song that once I heard the hook, I had to find out who the artist was. A couple days later, I found the song (“Vanished,” by Crystal Castles) on iTunes and, without hesitation, downloaded the song.

But I wasn’t quite satisfied with purchasing just one song from the new Crystal Castles album. After previewing several of their other songs, I began reading reviews by other iTunes users. Several five-star reviews were sharply contrasted by single-star reviews, most of which alleged that Crystal Castles had “stolen” much of their music from artists who had posted various 8-bit music samples on Creative Commons, subject to a CC license. The reviews, of course, were scathing, intending to deter potential buyers from supporting artists who steal from others. I decided to dig a little deeper.

As it turns out, Crystal Castles had created several songs which sampled several 8-bit music samples from a group of artists who had formed a collective, 8bitpeoples. Their website allowed visitors to download their music for free, subject to a CC license. The license allows for free copying, distribution, and transmission of the works in question, provided the person doing the copying/distributing/transmitting:

1. Properly attributes the work
2. Does not use the work for commercial purposes
3. Does not “alter, transform, or build upon” the work

Artists can waive any of the above conditions by giving their permission for other artists to do so.

The Crystal Castles controversy began in May, with the bad publicity becoming so destructive that Crystal Castles was forced to publicly respond. Surprisingly, they admitted to taking the samples without permission, but maintained that they had not used any of the samples in their album. Crystal Castles member Ethan Kath told Pitchfork that the infringing songs were either too “awful” to include on the album or were too difficult to clear with permission from the artists of the samples. The only song with infringing material available to the public was posted on their record company’s MySpace page by a record company rep. Pitchfork approaches the whole situation from a legal angle:

So yes, Crystal Castles did create derivative works based on the music of chip music artists without proper attribution (though the attribution wasn’t the band’s doing)–two Creative Commons agreement no-no’s. But since they didn’t release or perform the works — and deny that they were responsible for disseminating them — it would be hard to mount a case for the third Creative Commons violation (“commercial gain”). And indeed, even the other two Creative Commons conditions wouldn’t apply to experiments that were intended to remain in the bedroom/studio.

We may very well take Pitchfork for their word. But for me, there were other, more personal implications. Should I buy the album? The music was made by artists who clearly had not taken the time to seek permission for the use of these samples, let alone given them credit for the use. As a consumer who understood some of the implications, did I have a responsibility to boycott the album?

Creative Commons certainly has its critics, and those critics would be quick to point out a situation like this — where CC has created a set of rules that may be unmanageable and not complied with. But it is up to artists, as a community, to respect the rules of the Commons, and to act by an ethical code that goes above and beyond legal liability. It is also up to consumers, as a group, to bring attention to instances in which the code has been broken, and for which there may be no legal consequences. At the very least, consumers can create economic change through protest.

I’m sure many of you, as kindred spirits, have read this already, but I happened across it again during an extended fugue-state webcrawl, and it just seemed so eerily apt to what many of us do that I had to post it.

In fact, I’ve never really been very interested in computers themselves. I don’t watch them; I watch how people behave around them. That’s becoming more difficult to do because everything is “around them”.^[58]

–William Gibson, 2007

Can we foresee an end-state, if only a temporary / indefinite one, where computers and people are a single homogenous “whole”?  If so, what will that mean?  Are we there already?  Will it be Kurzweil’s IA?  The Singularity?

For even more of an interesting thought-spark, compare this, from Gibson’s All Tomorrow’s Parties (2004)

 ”How come this old shit [computer equipment] is always that same color?”

“There are two theories.  One is that it was to help people in the workplace be more comfortable with radically new technologies that would eventually result in the mutation or extinction of the workplace.  Hence the almost universal choice, by the manufacturers, of a shade of plastic most often encountered in downscale condoms.”

“Yeah?  What’s two?”

“That the people who were designing the stuff were unconsciously terrified of their own product, and in order not to scare themselves, kept it looking as unexciting as possible.  Literally ‘plain vanilla’, you follow me?”

I suspect it’s both, and that we are only now / recently  coming to an awareness and acceptance of computer equipment that we might actually design them for aesthetic use, as well as for use as tools.

–Adam

So a few weekends ago, I attended the American Constitution Society’s National Convention.

I decided it would be a great opportunity to practice liveblogging. Unfortunately, in the bowels of the Captiol hill Hyatt, there was no wireless access. So, for one panel, I wrote in a Word document as if I was live blogging, and I now post it.

All I’ve cleaned up to post here were typos. I’ve never done it before, so it’s probably more of an attempt to write a transcript than it is to react to the panel. The ACS website should have the video up soon, so if you watch it, you cen tell me if I did a good job.

–Adam

Panel discussion – hosted by the Separation of Powers and Federalism Issue Group

“The End of Anonymity? Threats to Privacy in a Brave New World”

Participants:

Jeff Rosen: (JR) – moderator

Marcy Wilder: (MW)

Melissa Ngo: (MN)

Leslie Harris: (LH)

Orrin Kerr: (OK)

 

Bios available here:

 

JR: (opens) Welcome and thank you for coming.

Privacy advocates like to predict the imminent end of privacy, usually in alarmist terms but it is true we have seen many new threats to privacy in the last 8 years

Scandals, wire-tapping, national security, Patriot Act, ISP release of search terms, the Kosinski scandal.

The issue is widespread, and will be part of the presidential campaign

 

Introduces panel.

Let’s jump in with threats to privacy in private sector

 

We live on line, and our activity there tends to be aggregated, whether by google or others.

To LH: “What is the greatest threat to privacy in terms of data collection by ISPs and what can govt do?

 

LH: we are operating in a digital universe with out of date legal standards (20 years)

Over the last 8 years, there’s been a focus on Nat. Sec and the debate has been over the laws there.

Traditional 4^th amend, standards are so eroded, in that most existing law predates the web.

So for any issue we discuss, our context has far outstripped the law

 

ISPs used to be seen as telephony carriers, with common carriage laws

Now ISPs are info services, and have tech to deconstruct packets, and are required under Calia to do that.

ISPs are trying to commercialize and value the data streams they have access to.

Behavioral advertising is happening already out there in the Internet cloud

“Profiling” in conjunction with 3^rd P advertisers

 

“Probably violates the electronic comm. Privacy act but it never anticipated that

 

There is strong pressure from govt. and from rights holders to forensically examine the datastreams (DRM, DMCA, etc)

 

For example, in conjunction with the child porn searches

 

ISPs are in a different place than 25 years ago, from what people signed on for

 

 

JR: Concretely, what can this audience fear from this world? There are those who say there’s not much to worry about

Leaked search terms? What is it?

 

MN: It has to do with the belief that personal information can be gathered and reused

Yes, they [ISPs] gather and search your personal info.

Info is gathered and possibly kept. But what do they do with it, and who has access?

 

The DoJ came to the search engines a few years ago and asked for all the search terms from a 2 month period.

All but Google complied. Lawsuit ensued.

Website were turned over, but not search terms

Court held there was an expectation of privacy in the info.

 

Is that the info you really want out there?

AOL searches included personal (medical) searches

People don’t want that type to be reused or repackaged

 

JR: Orin, you’ve been a skeptic of privacy hysteria. Is MN right? What about Yahoo complying with Chinese requests

 

OK: Let’s break it down a bit

1) Search terms and what happens to them

2) ISPs who transmit search terms

Orrin is worried about #1,, but not #2.

No search engine privacy law, but there should be.

Google should not keep search terms in a way that could be obtained by a subpoena

That info should be protected.

Govt. has been hands off about search terms, practical difficulties in linking IP addresses and search terms.

Govt would rather search hard drives.

But search terms can be invasive, and the judge handled it well

Theres a need for an ECPA type act for search terms and search companies like Google

 

Not worried about ISP since terms are content, and the rules are the same for them as they would be for reading emails, eg. Stronger protections exists

 

JR: The panel has IDed a real danger, and a solution, the search term privacy act

 

Marcy, tell us about the politics of privacy, if such a bill were proposed.

Privacy tends to be bipartisan, ands Clinton / Gore supported Patriot Act terms

 

 

Given the different ACLU ratings of Obama and McCain, how would they handle such a bill?

 

MW: the politics of privacy will be contextually dependent

Nat sec. will see a big difference on McCain and Obama, but no difference on health care

 

On the health side: everyone agrees that health care info data bases will have many positive effects, but privacy concerns are a roadblock. No one knows what to do.

 

The biggest threat in health care and everywhere else is a lack of transparency and a lack of knowledge

What the heck is actually going on?

Most of what is happening is opaque, and to have good rules, we need to shine the lights in, and that is not in the interests of the people doing the looking.

 

Users are blissfully ignorant, as long as their experience is good.

 

Health records: digitization will be good in practice / theory, easier to read, understand and share.

 

But “behind the curtain” is a mystery.

We don’t know what will happen?

Who will have access? Employers? Is medical ID theft an issue?

Easier to share means easier to steal.

 

The real question is “what should the rules be, and what is the role of consent and consumer control. I’d say, not so much

 

JR:

I want to press on the political question, since Obama is, for example calling for the return of habeas. Would Obama propose such a bill?

 

LH: Obama has already got some net cloud privacy proposals in his platform.

But I don’t want to pass Orrin’s bill.

Search is much too narrow. We live online, and hat needs ot be protected is any oinfo stored on line.

The short version is that online info is treated as business records with no expectation of privacy

Whether it’s flickr, or gmail or, GPS phone data or what have you.

It’s all stored behind low legal walls, so think broader.

Consent is a very weak protection

Internet consumers by and large don’t understand about cookies and opting out.

To make the consumer bear the burden is a mistake-

Clickwrap agreements, ToS

 

JR: OK, defend your bill, and also tell us your ideal govt. surveillance bill.

What would you suggest to a Pres. McCain?

 

OK: the govt surv. Problem is so broad.

Surveillance is a category not a thing.

 

We are moving to a networked environment where surveillance will be situationally dependant

 

I see my law as a restricting govt. acess. I’d like to see a ban on private access to search terms

 

Recent legal developments have shown that there is bette rprotection than we thought we had

a) 4^th Am. Expectation in stored content – a Rorschach decision?

b) MA court finding reasonable expect of privacy in picture files stored behind a password on Sprint site

Virtual online homes storage spaced can be private and enjoy 4^th protections.

 

So there is more protection emerging, at least with respect to content

 

On consent: If people consent to monitoring, that’s Ok as long as the consent is knowing

We do need consent in fact. No burying it in a long list of terms.

Real notice must be provided, and if it is then consent is OK

 

JR: Melissa, narrower or broader privacy laws? Are judges better than congress / th epresident at protecting privacy?

 

Where will you put your faith and why?

 

MN: tough question, and context dependent.

For example the war atmosphere clouds perceptions of what are acceptable levels of privacy

 

Which cases reach judges is relevant

Employment verification systems

DHHS wants employers to run employee data against the DHS database

Problem is: DGS and other agencies have admitted that their databases are wrong.

(Debate rages) Some say it is not a big deal, MN is not confident about the abilitiy of the bureacracy to solve problems. Personal anecdote about flawed citizenship status

A lot of hoops for her to jump through to solve someone else’s problem, even assuming she had the wherewithal to do so.

Most citizens don’t have the time or ability to spend days/ weeks/ months to solve red tape to keep jobs.

 

JR: Marcy, on health care privacy in the next administration, where will you put your faith?

 

MW: Congress. We want health care tech to move forward

People don’t agree on reimbursement reform or universal health care, and so focus on IT because everyone is onboard

Everyone wants data on line for good reasons, and everyone wants protections

Look for movement on HIPA regs in 2009.

They are 10 years old and need updating. Either BO or JMc will support this

“unifying moment”.

 

JR: on to nat. sec. privacy and surveillance

Obama has criticized it, McCain has waffled, most recently supporting tapping

Orrin, what does Mc Cain look like on this topic?

 

 

OK: (political disclaimer)

Supports the Protect America approach, but thinks the legislation was poorly written.

Basic idea as understood, we can monitor without oversight anyone outside the US with no inside contacts.

The idea is good.

The FISA court should be involved as to methodology

Constitutional law questions at stake.

“What is presidential power?”

 

But the area of disagreement is narrow, and tend to be about “types of court orders”

 

JR Orrin, is it right that everyone agrees that warrantless surveillance of U.S. citizens is bad?

OR: If that happened, it’s bad.

 

JR: how are our liberties being eroded, Leslie?

 

LH Orin is right that everyone agrees that external people can be tapped with FISA guidelines.

The real issue is how can we tap Americans as part of that process

Civil liberties community is split.

 

Most think a full FISA warrant is necessary, and even that might be a rubber stamp.

What should the FISA court’s role be, and what will be done with the data

I’m skeptical about the level of protection that will emerge from the deal being cut on FISA right now.

 

JR: Obama has criticized the FISA deal, is there any chance he’d get into this?

 

LH: I would not advise Obama to get into that right away. Other issues.

The FISA deal is six years. A problem

Obama may and should get to it later, but not off the bat. Too potentially damaging.

LH would prefer a two year bill, to allow for natural evolution

 

JR: what is the concrete threat of the FISA compromise? How are Americans endangered

 

LH: Americans will be targeted outside established rules for such surveillance.

The original purpoise of the court is being undermined. It will allow end-runs

The court is written out of its core purpose.

 

MN: last she saw was the proposal that included telecom immunity

 

LH: now they’ll have to go back to the court to show that the US told them it was legal

 

Case will not be dismissed out of hand

In each one they will have to go and show the court that the govt told them [telecoms?] it was legal

 

MN: the biggest question is, if you give the telecoms retroactive immunity, and do not investigate what happend, is that saying that Congress and the Administration is Ok with companies breaking the law because the govt told them to.

That’s one of the biggest discussion on telecom immunity. Should that happen, or should we shine some light in?

 

JR: final thoughts on NSA? OK.

Turning to the future, we need to scare the audience

Scenario: surv cameras

British style in NYC and DC

 

Google says that in 10 years those feeds will be on Google, or at least requested.

 

I.e. you’ll be able to click through a google search and get a live feed.

That is, like google streets, but live.

This will be ubiquitous real time surv.

 

What should be done?

 

LH: add to that, that everyone will have some sort of location device [GPS] there wil be real time tracking via GPS or RFID, or Onstar or whatever

Complete record will exist that will allow us to see hwere you are and what you are doing?

 

JR: why should we be upset?

“we already have zero privacy, get over it” right?

 

LH: posting on line, the no-privacy generation. Start to care after they leave school

 

Privacy spectrum:

Only matters when there is a concrete harm, or think it is an inherent right with personal control.

 

Starting from the latter means the above scenario is awful.

From the former means wait and see what harms develop.

Massive govt profiles?

Is Orrin right, and that we will see more case law saying that stored data will have protections?

 

We may need wholesale changes to the legal regimes, and all pressures are in the other direction.

All the associated panopticon / big brother problems

 

MW: this is all happening now to some extent.

No privacy? So what? That’s the attitude of the new generation

What is creepy is the loss of control by individuals

Laws are stepping up to control and limit the govt.

The private sector is becoming increasingly relevant, and may be more

We need to describe specifically and concretely what we don’t like

“ick factor” is not a policy argument

We need to discuss the issue in terms of pros and cons

Bigger question: once we talk about this, can it be stopped at all?

Tech is driving this in a way that the law cannot keep pace with.

 

JR: Orrin, in the panopticon world, is it a problem? Will you go this far and assent?

and what can be done?>

 

OK: I think this would be terrible. No good reason to do it.

Who is behind it is critical.

If govt. we could pass laws against it.

If companies, we can regulate, and take consumer initiatives “bad for business”

 

Privacy tends to be good for business.

Public opposition will make it tough for business to do things.

Economic interests, or relection interests make institutions vulnerable to laws and regulations.

 

JR: how likely is this outcome?

Even the young were upset by Beacon on Facebook.

Will even the netizens be appalled by the cameras?

 

LH: the face book people should not have been so shocked, and were only able to see what happened because they were in a distinct community.

John Q will not be able to see what’s happening until it is too late, and further, won’t be able to do anything about it.

People tend toward apathy and technological inability

People don’t even kill 3^rd party cookies.

 

 

The answer, at least in part, is to give people more control and transparency with tech.

 

JR: MN, can you respond to the point about tech, and it being too late?

Where is your faith?

 

MN: it’s difficult. People say tech is OK because they think that if the enabled behavior was illegal, then the etch wouldn’t be there. That is, since it’s possible, it must be OK.

 

There are attacks on privacy every day.

Leslie is right, people do not want to use privacy enhancing tech.

Companies losing unencrypted data, even though encryption is a basic.

People don’t do it because it is a little hard and time consuming.

May steps, rather than “hard”

People would rather believe that if they do nothing wrong they have nothing to worry about.

 

But in this day and age, merely to refuse to allow one’s data to be observed is to be under suspicion.

 

Instread of playing catch-up, we need people to assert control and learn procedures and protections, and we also need standardized protections on the outside that everyone can benefit from.

 

JR: what is a comprehensive strategy that could unite good law, technology and decisions.

 

How optimistic are you?

MW: I see an emergence of legislation as well as emergence norms.

The internet’s ability to unite people, in participatory communities and to increase transparency is good and will help.

The more transparency there is, earlier on, the more likely there will be an appropriate reaction.

 

We need to educate people more about the coming types of invasions.

 

 

QUESTIONS:

On consent: what info does the average consumer need to give reasonable consent to a service, and how will new services change the need to re issue consent?

 

LH: online consent has not worked. Most people think privacy policies mean no data is collected.

Meaningful consent in that context needs:

A way to provide enough enough info so people understand what is happening.

e.g. cookies.

Have to understand the legal framework and the long-term consequences of storage

I haven’t seen that work.

It would have to happen everywhere.

Further ToS could not include a right to modify, and would have to include a right to revoke.

Recall that the issue involves tertiary or even quaternary level actors.

To whom is permission being given? What are the secondary uses?

Consent is therefore inadequate

 

MW: the answer is that there needs to be a standardization of formatting for consent.

They need to be short and understandable, not mortgage documents

So how do we do that? [CC model?]

Second, consent is meaningful up to a point

Healthcare example: I consent to use of my info so provider can be paid.

What that really means is that the care provider will send the info through various entities.

Each middle man may abstract and sell data, always for different reasons.

Pharmacy reminders, quality control, etc.

Payment means many many things.

And the consumer doesn’t really have a way to consent to any or all of that.

 

Once data is “out” it will be copied many times, and it’s out forever.

We need to standardize, yes, but make consent meaningful

 

OK: I love standardization,. Analogizes CCommons. Understandable.

Consumer choice

[enforcement?]

 

JR: youtube has discovered that people don’t read policies, but will watch videos

 

Question: returning from out of the country traveler (even if US citizens) have no 4^th amendment rights

9^th circuit ruling about laptop contents being searchable.

Has tech outstripped the Constitution? Clearly no founding father intent

Do we need a Constitutional Amendment for privacy?

 

OK: a very hard question..

What should the rules be? Many feel that typically, it is outrageous to search a laptop without any prior cause, and just border crossing should not be enough.

On the other hand, we’d like to be able to stop people smuggling informational contraband.

 

Bottom line: no one knows where to do.

 

As for an amendment, this would be hard, because what would it be.

No agreement community wide as to what the rules should be.

 

The action will be with statutory change. And a hearing is being held on 6/25

 

MN: what is your laptop to you? Is it a book, or is it your journal, your crystallized thoughts?

the standard should be high, high enough to justify an invadion of the mind

tech’s answer is “scrubbed” laptops and VPN servers.

 

Also, encryption. Perhaps even multiple levels.

Of course, few people will multiply encrypt hard drives

But tech is not going to help for the reasons above, so we need legislation, or an amendment

 

JR: why an amendment? Who doesn’t think this is invasive? Why is the 4^th amendment enough?

 

LH the 4^th is adequate, but it is not being interpreted correctly.

Business records cases fomr the 1970s are inapposite.

 

If you don’t have a cognizable privacy inetrest, and 3^rd parties have your data, there is no need to develop jurisprudence because too many parties have no interest in challenging the status quo.

Agreed, though that statutory solutions are needed.

 

We need to stop reacting to the outrage of the month and legislating the “last war”.

So our laws are out of date.

So, we have the potential protections in place, we just need to use them.

 

QUESTION: what is the panels best estimate of the liability resulting from the wiretapping [telecoms] is there personal liability for officials? And if so to the latter, why not?

 

OK: the question is, suing someone for a constitutional right violation has many procedural hurdles.

4^th amendment problems in terms of proving search.

Qualifies immunity, etc all interfere with resolution on the merits.

 

QUESTION immunity. Why haven’t we learned from history, e.g Nuremburg?

 

Why are we even considering allowing a “I was just following orders” defense now?

Why can’t we say that the waiver in the white paper is invalid

 

OK: there is a legal proposition that says govt permission make it OK.

 

JR: why is it so important to immunize the telecoms?

 

OK: hard to say where people are coming from?

Is it a desire to avoid costly lawsuits where the point is discovery, not damages?

I.e. the real goal is unrelated to the ostensible purpose of the suit?

The appropriateness of the govt.’s activity?

 

Doesn’t think the immunity deal changes much since state Secrets will kill it all anyway.

 

QUESTION for Leslie: aside from the harmful aspects, do you really think people care about privacy?

Analogy of being overheard on the phone. People give away all kind s of stuff.

People only care about privacy when it hurts them.

 

LH cultural norms changing from privacy towards exhibitionism.

People are oblivious until things become transparent, and then they are surprised.

Why are people so shocked that the cops look at their facebook page?

 

People have different sets of expectations depending on the situation.

Health care is different for that reason

 

MN: Less pessimistic that we are doomed.

As more and more incidents happen, and people see that they aren’t private, and that they can be exposed, they will adjust their behavior.

They’ll realize, that unlike they think they have now, they have no control over digitally released information.

People will step back and try to make things “private private”

 

Following up on my thoughts from Friday on Gene Simmons’, er, interesting views on the music industry, and via Rob Walker, comes news of the release of Feed the Animals, Girl Talk’s newest album and a possible model for the future of music distribution. Girl Talk, for the uninitiated, is a Pittsburgh DJ who constructs hyperkinetic mashups of everything from ultra-profane gangsta rap, ’70s corporate rock, indie guitar riffs, and pretty much anything else – often all at the same time, and rarely one sample lasting more than 20 seconds. Quite simply, it’s awesome stuff, and manages to make often-iconic pop standards sound at once nostalgic and familiar, and totally new and exciting.

For his latest album he has initiated a pay-what-thou-whilst scheme as follows:

any price grants the download of the entire album as high-quality 320kbps mp3s
$5 or more adds the options of FLAC files, plus a one-file seamless mix of the album
$10 or more includes all of the above + a packaged CD (when it becomes available)

Pretty clever stuff, and also interesting (as Rob notes) is what happens when you signal your intention not to pay for the album – it takes you to a landing page where you answer just why you’re not paying for the album, including the following options:

I have opted to pay $0.00 because:

I may donate later
I can’t afford to pay
I don’t really like Girl Talk
I don’t believe in paying for music
I have already purchased this album
I don’t value music made from sampling
I am part of the press, radio, or music industry
Other reasons

This is an exciting approach, and hopefully Girl Talk will share the results when there’s good data that comes in – as opposed to Simmons, he’s not sitting around waiting for the music industry to figure out a way for him to get paid, he’s trying out ways to get his music out there and see what people will pay for it. But mostly, this is exciting (to me) because it’s a new Girl Talk album, and as such is super-excellent. Go get it, and pay what you will.

-Jacob Kramer-Duffield

In the journalism world, there is a tremendous emphasis on hyperlocal news media — that is, reporting on issues that are relevant in a very small geographic area. To what extent can we see this style of journalism reflecting back on the spaces it covers?

The bus schedule, taped to the bus stop’s signpost.

Restaurants post favorable reviews in their windows. Beyond advertising and good press, what other civic information from newspapers can be added onto the places they describe?

• Schedules of events that happen regularly. Or if the event is well known, list the deviations instead.
• Reminders of what’s coming to the space. X marks the development site.
• Reminders of what’s been in the space. Each of these silhouettes represents a cyclist hit at this intersection. This footprint marks where the demolished building stood.
• Highlight a path: this way to Davis Square.
• Post who’s in charge, how to contact them, and what they’ve done in the past. The Alderman for this district, X, is responsible for: …

RFID promises to make place-specific information accessible on a large scale. But “soon” has been “soon” for over 4 years now, and we aren’t seeing any widespread adoption in civic settings. And it won’t be a technology accessible to those who would benefit the most from that type of annotation.

For now, it’s the arrows spray-painted on the ground and the fliers taped on telephone poles that are the most relevant and useful. Decidedly low-tech, but the methods of getting them up don’t have to be.

“Pay Attention,” says this guerilla crochet project.

– Matt Hampel