Regulating Online Public/Private Spaces: Notes from a lecture

The presentation yesterday dealt with moving regulation from the physical world to the digital environment. My goal was to show the ways in which regulation occurs and in particular to go beyond the simplistic “wild west” ideology online – at the same time I wanted to demonstrate that online behavior is controlled by more elements than the technological boundaries.

In order to do this, I wanted to begin by demonstrating that the we have used tools for a long period of time and that these tools enable and support varying elements of control. And since I was going to take a historic approach I could not resist taking the scenic route.

In the beginning was the Abacus. Developed around 2400 BCE in Mesapotamia this amazing tool for extending the power of the brain to calculate large numbers (which is basically what your smartphone does but much much more…). The fascinating thing with the abacus is that despite the wide range of digital devices it remains in use today (but it is in deep decline).

The decline of the Chinese abacus the Suanpan

Suanpan arithmetic was still being taught in school in Hong Kong as recently as the late 1960s, and in Republic of China into the 1990s. However, when hand held calculators became readily available, school children’s willingness to learn the use of the suanpan decreased dramatically. In the early days of hand held calculators, news of suanpan operators beating electronic calculators in arithmetic competitions in both speed and accuracy often appeared in the media. Early electronic calculators could only handle 8 to 10 significant digits, whereas suanpans can be built to virtually limitless precision. But when the functionality of calculators improved beyond simple arithmetic operations, most people realized that the suanpan could never compute higher functions – such as those in trigonometry – faster than a calculator. Nowadays, as calculators have become more affordable, suanpans are not commonly used in Hong Kong or Taiwan, but many parents still send their children to private tutors or school- and government- sponsored after school activities to learn bead arithmetic as a learning aid and a stepping stone to faster and more accurate mental arithmetic, or as a matter of cultural preservation. Speed competitions are still held. Suanpans are still being used elsewhere in China and in Japan, as well as in some few places in Canada and the United States.

Continuing on the story of ancient technology pointed to the Antikythera Mechanism an analogue computer from 100BCE designed to predict astronomical positions and eclipses. The knowledge behind this machinery would be lost for centuries.

In the 17th century Wilhelm Schickard & Blaise Pascal developed mechanical addition and subtraction machines but the more durable development was that of the slide rule

The Reverend William Oughtred and others developed the slide rule in the 17th century based on the emerging work on logarithms by John Napier. Before the advent of the pocket calculator, it was the most commonly used calculation tool in science and engineering. The use of slide rules continued to grow through the 1950s and 1960s even as digital computing devices were being gradually introduced; but around 1974 the electronic scientific calculator made it largely obsolete and most suppliers left the business.

Despite its almost 3 centuries of dominance few of us today even remember the slide rule, let along know how to use one.

While the analogue calculating devices were both useful and durable most of the machines were less so. This is because they were built with a fixed purpose in mind. The early addition and subtraction machines were simply that. Addition and subtraction machines. They could not be used for other tasks without needing to be completely rebuilt.

The first examples of programmable machinery came with the Jacquard loom first demonstrated in 1801. Using a system of punch cards the loom could be programmed to weave patterns. If the pattern needed to be changed then the program was altered. The punch cards were external memory systems which were fed into the machine. The machine did not need to be re-built for changes to occur.

The looms inspired both Charles Babbage and Herman Hollerith to use punch cards as a method for imputing data in their calculating machines. Babbage is naturally the next famous point in our history. His conceptual Difference Engine and Analytical Engine have made him famous as the father of the programmable computer.

But as his devices remained to the largest part theoretical constructs I believe that the more important person of this era is Ada Lovelace who not only saw the potential in these machines but, arguably, saw an even greater potential than Babbage himself envisioned. She was the first computer programmer and a gifted mathematician.

Few scientists understood Babbage’s breakthrough, but Ada wrote explanations of the Analytical Engine’s function, its advantage over the Difference Engine, and included a method for using the machine in calculating a sequence of Bernoulli numbers.

The next step in this story Hollerith’s tabulating machine. While the level of computing is not a major step the interesting part is the way it came to be and the solutions that were created. The American census of 1880 took 8 years to conduct and it was predicted that the 1890 census would take 13 years to conduct. This was unacceptable and the census bureau looked for technical solutions. Hollerith built machines under contract for the Census Office, which used them to tabulate the 1890 census in only one year.

Hollerith’s business model was ingenious. He did not sell the machines, he sold his services. The governments and corporations around the world that came to rely on his company had no control but had to pay the price for his technical expertise. Hollerith’s company eventually became the core of IBM.

The point being that Hollerith positioned his company as holding the key role between the user and the data.

The progress in machinery and thoughts around machinery moved forward at a steady pace. Then making rapid progress during the second world war with names like Bletchley Park, the Colossus (the world’s first programmable digital electronic computer) and Alan Turing.

While most people could hardly comprehend the power of a computer, Vannevar Bush wrote his famous article on the Memex As We May Think in 1945. Here were visions of total information digitization and retrieval. Ideas that are now possible after half a century of modern computing history.

And with this we leap into the modern era, first with the Internet, then personal computers, and the advent of the world wide web.

The fascinating thing here is the business model becomes more clearly what Hollerith envisioned it. It was about becoming the interface between the user and the data. This is where the power lay.

When IBM was at it’s height Bill Gates persuaded them to begin using his operating system. He also persuaded them to allow him not to be exclusive to them. The world realized that it wasn’t the hardware that was important – it was what we could do with it that counted. Other manufacturers came in and IBM lost its hold of the computer industry.

When Tim Berners Lee developed the web and the first web browser and released them both freely online he created a system which everyone could use without needing licenses or payment. The web began to grow at an incredible rate.

Windows was late in the game. They still believed in the operating system but the interface between the user and the data was shifting. No matter which operating system or hardware you used it was all about accessing data online.

With Windows95 Microsoft took up the fight for the online world against the then biggest competitor Netscape. Microsoft embedded their browser Internet Explorer in the operating system and made it increasingly difficult for users to remove it. This was the beginning of the browser wars, a fight for control of the interface between the user and the data.

The wars eventually lost their relevance with the development of a new type of company offering a new version of a search engine. When Google came on the scene it had to compete with other search engines but after a relatively quick battle it became the go-to place where Internet users began their online experiences. It had become the interface between the users and the data. It didn’t matter which hardware, software, or browser you used… everyone began with Google.

At this point I introduced the four modalities of regulation used by Lawrence Lessig and presented in his work The Code from 1999.

modalitiesContrary to what many believe, regulation takes many forms. We regulate with social norms, with market solutions and with architecture (as well as laws). Naturally none of these modalities occur in isolation but we often tend to forget that much of our regulation is embedded in social, economic and physical contexts. If any of these contexts change then the law must adapt to encompass this change.

Using the offline problem of slowing down traffic I pointed to the law which hangs out speed signs, the market regulation of the price of a speeding ticket and the time it takes to negotiate its payment. Social attempts to slow traffic occur when people in the neighborhood hang signs warning drivers of children in the area. They are appealing to the drivers better nature.

And the architecture of the road. If we want to slow down cars it is much more efficient to change the road than to hang up a sign. Make it curvy, make it bumpy, change its colors there are an array of things that can be done to limit or slow access. The problem with using technology (or architecture) is that it is absolute. If we put speed bumps in the road then not even someone driving with good cause can speed. Even someone attempting to drive a heart attack victim to the hospital must slow down.

triangle The more we move from the analogue into the digital world the less control that is afforded through the law and the more ability we have to change the realities in which we live. Architecture or technology is more pliable as a form of regulation.

In closing I asked the class to list regulatory examples which occur when attempting to access information online via their smartphones. The complex interface between them and the data included new levels like the apps they use, the apps that their phones allow, their payment plans, social control online, social control offline and a whole host of other regulatory elements.

And here are the slides I used:

Technologies of Control & Desire Notes

The first class discussion & lecture of the Civic Media course began with the suitably vague title Technologies of Control and Desire. The purpose of this lecture was to introduce technology into the discussion of ethics and communication. The idea was to talk about the ways in which technologies have been seen both as a source of salvation and as a threat to the society in which they are introduced.

Unsurprisingly, in my eagerness I forgot to talk about the first slide which was a advertisement for an early television remote control.

Eugene PolleyOften the invention of the remote control is credited to Eugene Polley (1915 – 2012) it was an invention that had to happen. People didn’t want to have to stand up to change the channel. What we tend not to think about is that the invention of the remote control allowed for many changes. Thousands of channels would not be able to compete or exist without a remote control. Also advertising was forced to adapt once people could effortlessly change channels or lower the volume. Eugene Polley didn’t create the couch potato but he certainly made life easier for this group.

The first section of the presentation was a very, very brief introduction to technology ethics in order to arrive at the discussion of whether we have free choice or not. Are we choosing to do what we do based on ethical decision making? Or maybe on chance? Or maybe something else? What is the role of technology in forming our worlds and “assisting” our choices.

I included a quote from the composer Stravinsky

In America I had arranged with a gramophone firm to make some of my music. This suggested the idea that I should compose something whose length should be determined by the capacity of the record.

This is a nice illustration where art is no longer necessarily a choice of the creator but rather a decision based on technological limitations. Keeping on the theme of technology I also introduced the idea of technology enabling us to act – or to put it more extremely – technology “forcing” us to act.

To illustrate this I showed them the web page for the iPod Classic which has the line “Your top 40 000”. This refers to the capacity of the device to store 40 000 songs. But how would someone go about collecting so much music? Could it be done legally? Or does this tagline implicitly encourage piracy?

From this point I introduced technological determinism and the idea of choice. Without refuting that we always have choice I gave examples of social and technological mass choices that seem to indicate a high level of determinism.

From this position I pointed out that the way in which technology is accepted depends on the way in which we see it either as a threat or a benefit to our lifestyle. Using weird and wonderful advertisements and technical articles from the past I demonstrated a utopian vision where farmers work from home, students learn without reading and asthma is cured with cigarettes.

In order to demonstrate techno-pessimism I used quotes from Plato (against writing), a snippet against books from Johannes Trithemius’ (1494) In Praise of Scribes

The word written on parchment will last a thousand years. The printed word is on paper. How long will it last? The most you can expect a book of paper to survive is two hundred years.

Referencing social media I pointed at George M Beard’s (1881) concern that newspapers and telegraph create nervous disorders by exposing people to “the sorrows of individuals everywhere”

In closing I reminded the audience of Postman’s comparison between Orwell and Huxley’s visions of the future: Orwell was concerned that we would be oppressed by a technology wielding state. Huxley was concerned that we would all be sucked into the shallow pleasures offered by technology. I pointed out that it has become popular to say Huxley has “won” because social media seems to be people settling for shallow pleasures. However, this is not entirely true and states are increasingly using Orwellian means to control those who would engage in deeper discussions that threaten the state.

I finished off with a short video of Morosov’s work (which can be found online here) and a class discussion. The slides I used for the class are online here


Are tweets really, really public?

There is a very interesting discussion going on at Gawker about whether Twitter is private or public. Here is a representative excerpt:

Most things that you write on Twitter will be seen only by your followers. Most things that you write on Twitter will not be read by the public at large. But that is only because the public at large does not care about most things that you have to say. It is not because the public does not have “a right” to read your Twitter. Indeed, they do. They can do so simply by typing Twitter dot com slash [your name] into their web browser. There, they will find a complete list of everything that you have chosen to publish on Twitter, which is a public forum.

If you do not want your Twitter to be public, you can make it private. Then it will not be public. If you do not make it private, it will be public.

So far, so good. But then there is the bit that made me think.

Because Twitter is public, and published on the internet, it is possible that someone will quote something that you said on Twitter in a news story. This is something that you implicitly accept by publishing something on Twitter, which is public.

This part I find less convincing. Yes, Twitter is public. But does this really mean that everything in the public could be used in any way. Am I supposed to have implicitly agreed to any form of possible, potential use of my material simply because Twitter is public?


From a copyright perspective there is a good case for arguing that my tweets are my property. But then again I would also argue that republishing the tweets falls under fair use or right to quote. Despite this, it’s still a good illustration that public does not mean free-to-use-in-any-way-I-want.

But what are the limits of re-use of Tweets? I would be offended if a militant group of madmen (take your pick) used a tweet of mine (along with my image and user name) on a poster (unlikely scenario, I know). But would I be able to prevent it?

What about using tweets in lectures? Ah yes, its fair use. What about shaming a student by displaying his/her tweets? (Not outlandish it happened here). What about the police shaming drunk drivers? What if a doctor retweets medical information tweeted by a patient? Would this breach medical ethics?

Tweet This by Kris Olin CC BY NC SA

The technology is public (open for all to see). But this mean that the public has the right to do whatever they please with what they see? Even if there is no legal limits to this behavior, there are ethically questionable reuses of tweets.

The point is that when I tweet something there is a small chance that the people who follow me see it. If some of them retweet then there is a chance of others seeing it. But if @stephenfry were to accidentally retweet it – I would achieve internet fame.

My tweets do not achieve internet fame. My tweets exist within a context. Naturally there is no law preventing them from leaving that context but when they do, their meaning may warp beyond their original meaning and purpose. And when this happens – what is the ethical responsibility of the re-tweeter?

Help! I’ve been stolen

There I was calmly at home with the laptop, well prepared for the impending winter storm that is going to hit us soon when I got a message from a friend via Facebook telling me that there is a fake twitter account in my name. The message included a link to this account


At first I didn’t spot it. All I saw was the number of tweets, following and followers were wrong. Then I saw that the text was wrong, before I finally saw the twitter handle was another. Here is my twitter account


Not only had the cheeky bugger stolen my image and my (older) bio but even taken my background too. Damn! He/she has also violated the Creative Commons license for my image of the bottles in the background. No attribution!

He/she has been tweeting since August and only managed 16 tweets. But the last one was just hours ago. Why? Seriously It can’t be that difficult to create a profile – so is to somehow fool my friends? I doubt that would work.

Anyway I filed a complaint with twitter and quickly received a mail with the content

To confirm your identity, fax a copy of your valid government-issued photo ID (e.g., driver’s license, passport) to Twitter

Really!! Not only do I have to prove that I am who I am, but now I have to find two pieces of archaic technology (photocopier and fax) in order to prove who I am.

What this proves is:

  1. Stealing someones likeness and bio is easy online (duh!)
  2. In order to really prove who we are we need to downgrade to pre-internet technology
  3. First world problems are really a drag


New York Times' prophetic 1983 warning about the NSA

The scary part about the whole NSA Prism story is the predictability, if not inevitability of the whole affair. The shock of the disclosure lies mainly in the hope that government will not do what they have the power to do.

Via BoingBoing comes this 1983 article from The New York Times written by David Burnham: THE SILENT POWER OF THE N.S.A.

No laws define the limits of the N.S.A.’s power. No Congressional committee subjects the agency’s budget to a systematic, informed and skeptical review. With unknown billions of Federal dollars, the agency purchases the most sophisticated communications and computer equipment in the world. But truly to comprehend the growing reach of this formidable organization, it is necessary to recall once again how the computers that power the N.S.A. are also gradually changing lives of Americans – the way they bank, obtain benefits from the Government and communicate with family and friends. Every day, in almost every area of culture and commerce, systems and procedures are being adopted by private companies and organizations as well as by the nation’s security leaders that make it easier for the N.S.A. to dominate American society should it ever decide such action is necessary.

Wearable camera takes 2 photos per minute

Lifelogging has been a buzzword for some time now, but its still a cumbersome task for most of us. But this is not going to last long.

One device that’s going to make this all too easy is the Memoto, which has the tag line “Remember every moment.”

The product is small and simple, clip it on and it takes two photos per minute until you take it off. In the promotion video Memoto says: “What if we could build a camera small enough to never be in the way, but smart enough to capture life as we live it.”

The mass of 5 megapixel pictures are stored on Memoto’s storage surface, and include the time and the location where they were taken. Via an app the photo’s are searchable via gps and time.

When the images are stored on the cloud they are organized into moments, represented by the algorithmically chosen most interesting image.

Sure this is a cool toy, its small, light and colorful. But it also raises several ethical implications. Such as:

  • Many of the people around will have no idea they are being photographed by the device
  • People may object in general to having their time and location and image stored
  • What happens if the device carrier walks into sensitive areas such as hospitals, courts, police stations
  • Who controls the images
  • Who accesses the images (legally or illegally)
  • Copyright questions
  • Trade secrets

Despite all these questions the devices are available and will probably be around soon. A day will produce over 1000 pictures – which explains the need for the algorithm to help us sift through the garbage. But even then I suspect that most of us will realize that we live fundamentally boring lives, probably not worth documenting.


Public shaming with technology

A question that has been bouncing around my head for a while, and maybe this is because of an article I’m working on now, is why do people use technology to shame, defame, slander or insult in ways that they would never do without technology?

This is not a new discussion. In the early Internet days part of the answer that was often used was the idea that people felt that they could be anonymous online and this made “bad behavior” permissible or possible.

The important thing about this anonymity was that it was a perceived sense of anonymity as opposed to real anonymity. This caused many to believe that if anonymity could be taken away technology users would behave themselves.

Surveillance would resolve bad behavior.

This thinking created the idea of enforcing real identities online.

Countries like China and South Korea and companies like Google and Facebook have for different reasons implemented real identities online.

Naturally policies and regulations such as these have been criticized.

But do we behave if we do not believe ourselves to be anonymous online?

Apparently not.

Look at the abuse that Marion Bartoli, the woman’s Wimbledon champion, faced.

With tweets like “Someone as ugly and unattractive as Bartoli doesn’t deserve to win” there is a direct connection between physical appearance and physical skill. Sadly, of course, this connection is more common when it is related to women.

What is interesting is that many of those who offered opinions like this (and worse) were not anonymous and yet they were still openly hostile, belligerent and maybe slanderous.

The Swedish clothes company H&M printed clothes with pictures of Tupac Shakur, a 21 year old Swedish woman, wrote to question on H&M’s Facebook page asking why they thought it was ok to use the picture of a man convicted of sexual abuse in their clothing.

As a result she received thousands of comments, she was threatened with, amongst other things, rape, stoning and drowning. The main discussion was whether or not H&M had behaved correctly by not being actively enough in removing comments.

But what is interesting is that the comments where all on Facebook, people seemed to be happily open with their misogynistic, threatening and illegal comments. There was no illusion of anonymity, the users were easily identifiable by everyone and yet this did not stop them.

Bad behavior online is not prevented by openly identifying everyone.

Sun, Sand and GikII VIII

It’s GikII time.

When robots, drones, autonomous agents, Facebook stalking, teleportation, 3D printing, MMORPGS, science fiction, computer games and superhero justice are discussed within the realms of the law and LOL cats, you know the time for the annual GikII workshop has arrived! Yes it’s time for GikII VIII – and a time to immerse ourselves in debates about cutting-edge technology, popular culture and the law.

This year GikII will be “in sunny, golden-sandy Southern city of Bournemouth with its sparkling sea and almost California-like-but-not-quite atmosphere. It will be held on 16-17 September 2013”

All the info you need is over here.

Contributing to the commodification of our existence

When you think you have seen it all… Göteborg this week experienced a “slut shaming riot” (not three words I expect to see in one sentence) actually the background is better explained here but I couldn’t resist “slut shaming riot”. The short version is:

The turmoil was set off after an Instagram user asked for tips on “sluts” in Gothenburg, and promised anonymity to anyone sending in pictures. More than 200 pictures were submitted, giving names and alleged sexual activities of girls aged 13 to 14.

A 17-year-old girl was outed on Facebook as being behind the Instagram account, a mob  organized via Facebook, set off to teach her a lesson.

The rioting students then moved over to the Nordstan mall in central Gothenburg, forcing confused holiday shoppers to take cover inside stores as police work to bring the unruly teens under control.

Naturally the media was asking lots of strange questions attempting to find someone to hang. Who’s fault is it? Kids today? Social media? Technology in general?

Most reports didn’t explicitly say it but they were steeped in the nostalgia of days gone by and the illusion magnified through history that these kinds of things never happened when they were young, that things really were better in the good old days.

Really stupid. A largely non-violent riot made up of teenagers? The concept is as old as history. People using an external trigger to let of steam and to take advantage of a situation… That must describe almost every riot in history!

Amid all this media clutter the question gets asked: Are we going to grow up and stop using social media? The answer is most obviously NO. Social media users like using social media – it fills a need and provides a service. Obviously we will not stop using this medium.

This doesn’t mean that we shouldn’t think about what the medium is doing to us. There is a great level of social media fatigue. My favorite example comes in the form of humor. We are developing a larger ability to poke fun at social media use – it’s not pointing at the stupidity of others but actually poking fun at our own use.

Take for example the excellent Look at this Instagram (Nickelback Parody) which show’s how our need to “share” is not innovative, creative or special. Seriously “Look at this coffee foam… I’m frigging Michelangelo” talks to me 🙂

However there are more important problems that are being missed. Our “bad” behaviors – oversharing, outing others, narcissism, voyeurism, stalking… just to name a few – need to be addressed but while we argue on the correct social norms of social media use we are blind to the bigger problem.

We are contributing to the commodification of our own existence. The companies that provide these services are collecting all our data. It’s not only the material you share but all your behavior (check out YouTube What Facebook Knows About You & Malte Spitz’s TEDTalk: Your phone company is watching).

These massive surveillance systems use the data they collect to manipulate the way we think by hiding and revealing different information to different users (Have written and spoken a lot about this. Here is an example). Then there is the question of who should own the rights to a users data. BTW please remember a picture of your face, flirting online & comforting a loved one is all “data”.

The licensing puts the legal right in the hands of the companies. You signed the license. You don’t like it? Then f**k off. But there is more to rights than licenses. I like the way Mat Honan expresses his sense of being betrayed in Why I Quit Instagram

By now you’ve likely heard Instagram changed its terms of service. There is a lot not to like, but I didn’t quit because of any single change in particular.

Why did I quit Instagram? It’s the thoughtlessness, stupid.

Instagram was built not by a team of ten in San Francisco’s South Park – but by tens of millions and then hundreds of millions of people all over the world. …

Which makes it remarkable that the company has shown such utter disrespect for that very network of people.

We like using social media and should be allowed to use social media. What the discussion should be is turning to the question of why companies are allowed to profiteer in the way they do on our data.

Who is going to protect us? Well it should be the same legislators who are busy abdicating their power to the social media companies and hiding behind the sanctity of the contract: In this case a ridiculous document few have read, even fewer can understand and whose terms get changed at the drop of a hat.

We are protected by lofty human and civil rights documents. Government has a duty of care to ensure that we are not harmed. And still nothing.

The rights we have worked hard to achieve, the rights we so proudly proclaim in other circumstances are now all being contractually frittered away…

Every pic you take
Every post you make
Everything you like
All your friends in sight
Facebook’s using you

Every smiling friend
You post on Instagram
Won’t belong to you
Nothing you can do
Facebook’s using you

Oh can’t you see
They know you and me
Can match your name to a face, that can be accessed anyplace

And maybe just next year
Whatever shop you near
Cameras ID you
To further market to
Facebook now owns ‘you’

Since it came the net is a worse space
If I share I feel like I’ll be traced
The buttons and the “like us” pleas disgrace
The thoughtful words that they replaced
I just can’t not feel paranoid

You own nothing here
It couldn’t be more clear
Instead of getting mean
You feed the machine
The one that’s using you

—© 2012 Facebook
via Rosinal McDonald (found in the comments section of Why I Quit Instagram)

Bileta 2013 Call for papers

I have a soft spot for the Bileta conference. It’s one of the earliest technology law conferences I began to attend and many of the people I met at the early conference are still colleagues. Bileta is the British and Irish law education and technology association and this years conference will be held between 10th – 12th April 2013 at the Liverpool Law School, University of Liverpool.

The extended call is here:

Important Dates

January 18, 2013: Submission of abstracts and panels (subject to double blind review).  February 1, 2013: Notification of acceptances.
March 15, 2013: Full Papers (between 7,000 and 10,000 words, excluding footnotes).