Wednesday, July 27, 2011

What the Murdoch Phone Hacking Scandal Highlights About Privacy Rights...

Following up on my previous examination of Internet privacy, L. Gordon Crovitz just wrote in the Wall Street Journal how the Murdoch phone hacking scandal, being such a clear violation of privacy, really serves to highlight just how ambiguous privacy is in other areas.

In the phone hacking case, there was little outrage when celebrities and royalty had their voicemail compromised, perhaps because these people have chosen to live public lives. But when the hacking reached private people, such as the family of Milly Dowler, the young murder victim in Britain — with messages erased that gave false hope to the parents that the girl might still be alive — everyone was outraged.

It's certainly true that society has different expectations of privacy rights for individuals who choose to lead public lives versus those who wish to remain private. The problem is that, in the Age of Facebook, everyone chooses to lead public lives to some extent.

How do we reconcile this? Approaches that only seek to strengthen privacy seem to miss the big picture - they're certainly part of the equation, but they fail to account for the larger complexities of the issue. In other words, to use Crovitz' analogy, if all we focus on is how it should be illegal for the media to reveal the guest list at a prominent socialite's dinner party, we're in denial about the fact that the hostess of the party will probably blog about it in advance and that the guests will likely send Twitter updates while it's under way.

Focusing on that reality is the real challenge in the contemporary Internet privacy debate. And Crovitz has it exactly right...

The modern expectation of privacy is not that people will always want to remain anonymous. Instead, they expect to have a choice about how they both control and share information about themselves. Privacy should be about individual choice, not based on a predetermined definition of either confidentiality or transparency.

Thus, when we talk about enhancing "Internet privacy rights", what we should focus on is not how to protect, protect, protect at all costs. Rather, enhancing privacy rights actually means enhancing the choices that individuals have in deciding what information they want to share and with whom they want to share it with.

More options - and more easily understandable options - for the average social media user. Sounds like progress to me.

Tuesday, July 26, 2011

Do Free Markets Make It Worse? The Case of New TLDs...

A big thanks to my friend Jon for sharing with me this great blog post by "A Smart Bear".

That famous institution of Internet governance, ICANN, is at it again. They recently announced that they will start selling new Top-Level Domains (TLDs) for $185,000 each. This means that in the near future not only will there be websites ending with .COM, .NET, .EDU, .ORG, etc., but also basically anything else that can be dreamed up. For example, instead of, I can register the domain name http://www.rob.domanski.

Of course I can only do so if I'm willing to pony up that hefty $185,000 fee, in contrast to the usual $35/year.

Jason from "A Smart Bear" argues that this is the "dark side of free market capitalism". He's absolutely right in pointing out that ICANN's statement about how these new TLDs will somehow spur innovation is completely bogus, and it's one which I've never understood. As he so glibly puts it, "There is zero innovation in making the URLs be instead of

However, he seems to take a great leap in suggesting that it's actually harmful. He first makes the charge that ICANN is more interested in making money than innovation - which would be reasonable except that ICANN is a not-for-profit institution (an awfully inconvenient fact that leaves me scratching my head).

He also says that the new TLDs are harmful because "Today when you want to tell someone a domain you say "," and people understand they're supposed to key that into the little field at the top of a browser window. But if my TLD is just "asmartbear," what do I say?

I agree that that's problematic, but it's only a problem for those companies dumb enough to purchase one of these new TLDs in the first place. What harm is there to the rest of us? People will still understand that "" refers to a website just as they do now.

Finally, he goes on to describe how free markets make things worse...

Here's where the free-market folks pipe up to argue this is the way it should be. Because: Even if you admit that it’s a useless product, preying on the ignorance and fear of big brands, if ICANN can legally do it, and if those brands want to spend that money, then that’s exactly what they should do... If it's a poor product at an unreasonable price, the market will correct. The market is efficient and wise.

I guess I'm one of those "free-market folks" he's referring to because, even though I happen to think the new TLDs are pretty dumb and useless, I see no harm in them either. If people and businesses have more options to choose from, how is that a bad thing? And really, who am I to decide?

His comment describing the free-market folks' argument actually nails it on the head. I would only take issue with how he says "the market is efficient and wise". It's not. Free markets are a mess and are filled with lousy decisions, and that's what makes them work. If a business wants to spend $185,000 on a confusing TLD for their domain name branding, let them. It should be their mistake to make - so long as there are no new mandatory rules or regulations being applied to the rest of us.

Any item is worth what it's purchaser will pay for it.

Thursday, July 14, 2011

Diaspora: The New Not-Facebook Facebook...

Just a quick post to introduce everyone to Diaspora - a free, open-source and distributed social network - that is intended to be a more privacy-aware alternative to Facebook.

You can check out a great review of it here in New York Magazine.

Some of the main selling points... The project is supposed to be "less an imitation of Facebook than an escape route from it — a path to freedom for those who had come to fear the dark side of the social network".

Also, because it's open-source, users actually own their data and, if they wish, they can even run their own servers. There is no corporate data-mining and no "whiplash privacy protocols".

The underlying idea is terrific - especially the fact that users actually get to own their information, photos, videos, etc. (and, yes, on Facebook, the company owns the legal property rights to your photos, not you).

However, open-source privacy-focused alternatives to overwhelmingly popular websites often don't make much of a dent in terms of market share. Does anyone remember how OpenSocial was going to replace Facebook two years ago or how DuckDuckGo was going to challenge Google?

Diaspora sounds full of promise, but forgive me for being a bit skeptical at this stage. Nevertheless, everyone should make that judgment for themselves.

Sunday, July 10, 2011

When Free Speech Trumps Privacy Rights Online...

In preparation for a conference panel that I'll be on in September, this is the first of a few notes and comments related to the state of Internet Privacy today.

First, let's be clear about the arguments for why harm from speech on the Internet is potentially greater than harm from speech in other media: 1) the potential audience is much larger, 2) the speech remains indefinitely discoverable in countless data archives, and 3) that information can be easily located through common search engines.

The textbook example of a contemporary online privacy case involves Facebook tagging. Millions of Facebook users post photos and tag other individuals who are pictured in them. The person doing the tagging does not need the consent of the person being tagged, and once it is done, the photo will show up on the Facebook walls of not only those two individuals involved, but also all of their friends in the network. Once an embarrassing photo is posted of someone, not only can't it be removed by the person being embarrassed (un-tagging themselves being their only recourse), but all of his or her friends will be instantly notified about its existence.

Most people find this disconcerting. However, an argument for why the law should NOT prohibit such privacy invasions is presented by Geoffrey R. Stone in "Privacy, the First Amendment, and the Internet" (a chapter in the book, "The Offensive Internet", edited by Saul Levmore and Martha C. Nussbaum).

Stone asks, under what circumstances, if any, may the government penalize an individual for communicating "private" information about another person?

Warren and Brandeis famously established the "right to privacy" tort in a law review article in 1890, but the Supreme Court has never directly squared this tort with the First Amendment. Case law suggests that the government may only be able to regulate speech, in this privacy context, if it is deemed "low-value speech" - on par with false statements of fact, threats, fighting words, express incitement of unlawful conduct, and obscenity.

The central argument for treating online privacy invasions as "low-value speech" is that it is said to be "non-newsworthy" and therefore does not meaningfully contribute to the sort of public discourse that the First Amendment was intended to promote.

But defining what is "non-newsworthy" is obviously problematic. Is a nude photo of Sarah Palin non-newsworthy? How about a Facebook status revealing that someone is gay (when it is, in fact, a true statement)? How about a post revealing that a particular woman has had an abortion? Is that non-newsworthy? What if that same woman was running for student-body president?

The problem, clearly, is that what is an invasion of privacy for some is newsworthy for others. And the intent of the First Amendment has always been to prevent the government from restricting speech by default when that is unclear.

So here's a summary of the situation... the government can only penalize an individual for communicating "private" information about another person if it is deemed "low-value speech"; and an invasion of privacy online can only be considered "low-value speech" if it can be proved to be "non-newsworthy"; and this is a term so subjective, vague, and open-ended that it is beyond anything the Court has ever upheld in its First Amendment jurisprudence.

Therefore, Stone says that this is the reason why, legally and constitutionally speaking, the Court does (and is right to) consider free speech to trump privacy rights online.

It's a logical argument, but it strikes me as more of a legalistic explanation than something that might be remotely helpful in addressing the problem. The Facebook victim in our example above won't find much comfort in hearing, "Sorry, your case does not meet the thresholds of non-newsworthiness and low-value speech".

What's even more frustrating is how Stone concludes that the law "can no longer effectively deal with non-newsworthy invasions of privacy... the combination of the First Amendment and social and technological change has, for all practical purposes, gobbled [the tort of privacy] up completely. To argue otherwise is simply to tilt at windmills". He then finishes by saying that our only hope is that "the much greater visibility of human foibles in the modern era will likely lead people to learn how to put the mistakes of others in their larger context".

Geez, how depressing is that? His legal explanations answered why the Courts have had a hard time thus far in addressing online privacy violations, but to suggest that the law simply can't deal with the problem at all, and we should just cross our fingers and hope that people will eventually develop some perspective and learn to place embarrassing Facebook photos in their proper context is, well, pretty defeatist.

Hopefully, in the coming weeks, as I explore the scholarship on this issue in greater detail, I can come up with a few constructive ideas that are a little less apocalyptic.

Tuesday, July 05, 2011

Going Green With Set-Top Boxes...

For years the E.P.A. has run a voluntary program that many of us are familiar with... certifying with an "Energy Star" different products that meet a high energy-efficiency standard. But this voluntary program, while popular, may not be enough, and the federal government may soon weigh in on the issue.

The Energy Department just chimed in that it might start issuing energy conservation requirements for cable boxes, digital recorders like TiVo, and other common household media devices.

A study by the National Resources Defense Council found that in 2010, the 160 million set-top boxes around the country consumed about 27 billion kilowatt-hours of electricity, roughly the annual output of nine coal-fired power plants, costing consumers $3 billion. Some boxes can consume more power than a good-size refrigerator...

The boxes eat up so much power because they typically run almost around the clock; as much as two-thirds of their consumption comes during times when they are idle. When asked why, one manufacturing company said nobody ever asked them to use less power.

Is this a common-sense measure to make America more energy efficient, or is it an overreach of regulatory authority by the federal government?

While the pundits argue that question, allow me to simply say that, for individuals looking to greatly reduce their monthly electric bill, one super-easy related measure that almost nobody does is to hook up your cable box, TV, video game console, and other similar media devices to a power outlet strip (instead of directly to the wall outlet). Just by turning off the outlet strip when you leave the house or go to bed for the night, you can easily save $20 - $50 per month just by increasing your efficiency and without sacraficing anything.

It's a no-brainer.