Cyberlaw

Real Fame at Last: my acceptance speech

As an academic we measure stuff and compare all the time. I’m not talking about research but rather the comparisons between each other. Who has the longest publication list, given the most keynotes, sat on the most advisory boards…

Today is a major moment as I have received the highest form of praise an Internet researcher can obtain. It is an object of desire that I have been dreaming of, but not daring to hope for.

So I would like to thank the academy, my advisers, supervisors and all my collaborators: without you guys none of this would have been possible.

Today a cease and desist letter finally graced my inbox.

We are requesting that you remove the link back to our site.

Admittedly it’s the weakest form of c&d letter and is not accompanied by evil threats but it contains the most vital statement necessary to enable induction into the halls of Internet fame. Once again: Thank You.

Posted on by mklang

Police, Evidence and Facebook

One of the things I presented at IR13 was in a 10-minute panel presentation on the regulation of Internet by spaces such as Facebook. I wanted to use this all to brief time to enter into the discussion of a problem of police, policing, procedural rules and technological affordances – easy right?

This is going to be a paper soon but I need to get some of the ideas out so that I remember the order they are in and so that people who know better can tell me how horribly wrong, ignorant and uniformed I am about the rules of evidence in different jurisdictions.

So the central argument is that computers have been used for a long time in police work and we have created safeguards to ensure that these computers and databases are not abused. In order to prevent abuse most countries have rules dictating when the police can search databases for information about someone.

Additionally, many countries have more or less developed rules surrounding undercover work, surveillance work and the problem of what to do with excess information (i.e. information gained through surveillance but not relating to the investigation that warranted the surveillance). As you can tell I need to do more reading here. These will all be in the article but here I want to focus on a weakness in the rules of evidence, which may be presented to the courts. This weakness, I argue, may act as an encouragement to certain police officers to abuse their authority.

Facebook comes along and many government bodies (not limited to the police) are beginning to use it as an investigative tool. The anecdotal evidence I have gathered suggests no limitations within the police to using Facebook to get better photos of suspects, finding suspects by “trawling” Facebook and even going undercover to become friends with suspects.

Now here is an interesting difference between Anglo-American law and Swedish Law (I need to check if this applies to most/all civil code countries): The Anglo-American system is much better at regulating this are in favor of individual rights. Courts routinely decide whether or not information gathered is admissible. If a police officer in America gathers information illicitly it may not be part of the proceedings.

In Swedish law all information is admissible. The courts are deemed competent to handle the information and decide upon its value. If a police officer gathers information illicitly in Sweden it is still admissible in court but he may face disciplinary actions by his employer.

So here’s the thing: If an officer decides he doesn’t like the look of me. He has no right to check me up. But there is no limitation to going online.

He may then find out that some of my friends have criminal records (I have several activist friends with police records) or find politically incorrect, borderline illegal status updates I wrote while drunk (I have written drunk statements on Facebook).

This evidence may be enough to enable him to argue probable cause for a further investigation – or at least (and here is the crux of my argument) ensure that he will not be disciplined harshly in any future hearing (should such a hearing arise).

The way the rules are written Facebook provides a tool that can be used to legitimize abuse of police power. And the ways the rules are written in Swedish law are much more open to such abuse.

Here are the slides I used for the presentation

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Is there an inverse Filter Bubble?

The whole concept of Filter Bubbles is fascinating. It’s the idea that services like Google & Facebook (and many more) live on collecting data about us. In order to do this more efficiently they need to make us happy. Happy customers keep using the service ergo more data. To keep us happy they organize and filter information and present it to us in a pleasing way. Pleasing me requires knowing me. Or as Bernard Shaw put it “Do not do unto others as you would that they should do unto you. Their tastes may be different”

Its this organizing that makes creates problems. At its most benign Google attempts to provide me with the right answer for me. So if I search for the word “bar” Google may, based on my previous interests (searches, mail analysis, Youtube views etc), present me with drinking establishments rather than information about pressure. Maybe useful, maybe annoying. The problem occurs when we move on to more difficult concepts. The filter bubble argument is that this organization is in fact a form of censorship as I will not be provided with a full range of information. (Some other terms of interest: echo chamber & daily me & daily you).

Recently I have been experimenting with filter bubbles and have begun to wonder if there is also an “inverse” filter bubble on Facebook. The inverse filter bubble occurs when a social media provider insists on keeping a person or subject in your feed and advertising despite all user attempts to ignore the person or topic.

So far I am working with several hypothesis:

  1. The bubble is not complete
  2. The media provider wants me to include the person/topic into my bubble
  3. The media provider thinks or knows of a connection I do not recognize
  4. The person I am ignoring is associating heavily with me (reading posts, clicking images etc)

This is a fascinating area and I need to set up some ways of testing the ideas. As usual all comments and suggestions appreciated.

Posted on by mklang

Tolerance is law

Enjoying the great feeling of seeing my latest article (together with Jan Nolin) in (digital) print! Please check out Tolerance is law: Remixing Homage, Parodying Plagiarism which has been published today in the open journal Scripted.

Would like to thank the reviewers for pointing out the flaws and helping us improve the article. But I still want more so every and all comment is appreciated.

The abstract is boring but the article is (hopefully) much more interesting. Abstract:

Three centuries have passed since copyright law was developed to stimulate creativity and promote learning. The fundamental principles still apply, despite radical developments in the technology of production and distribution of cultural material. In particular the last decades’ developments and adoption of ICTs have drastically lowered barriers, which previously prevented entry into the production and distribution side of the cultural marketplace, and led to a widening of the base at which cultural production occurs and is disseminated. Additionally, digitalisation has made it economically and technically feasible for users to appropriate and manipulate earlier works as method of production.
The renegotiation of barriers and the increasing number of creators who publish their works has led to an increase in copyright violations and a pressure on copyright legislation. Many of these potential violations are tolerated, in some cases have become common practice, and created social norms. Others have not been so fortunate and the law has been rigidly enforced. This arbitrary application decreases the predictability of law and creates a situation where creation relies on the tolerance of the other copyright holders. This article analyses different cases of reuse that test the boundaries of copyright. Some of these are tolerated, others not. When regulation fails to capture the rich variation of creative reuse, it becomes difficult to predict which works will be tolerated. The analysis suggests that as copyright becomes prohibitive, social norms, power and the values of the copyright holder dominate and not law.

M Klang & J Nolin, “Tolerance is law: Remixing Homage, Parodying Plagiarism”, (2012) 9:1 SCRIPTed 7 http://script-ed.org/?p=476

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Your Phone Company is Watching

Data retention and mobile telephones are seen as boring subjects. But change that to “Your phone company is watching” and get Malte Spitz to harass his phone company to use his right to information. The data he gets maps out 6 months of his life – check out what he does with the data. All of a sudden data retention is not boring – it is scary serious.

Spitz demonstrates simply why this is important. He argues that we have to fight for our right for self-determination every day. He is right and history may depend on it.

 

What kind of data is your cell phone company collecting? Malte Spitz wasn’t too worried when he asked his operator in Germany to share information stored about him. Multiple unanswered requests and a lawsuit later, Spitz received 35,830 lines of code — a detailed, nearly minute-by-minute account of half a year of his life.

Malte Spitz asked his cell phone carrier what it knew about him–and mapped what he found out.

Posted on by mklang

Silly linking terms

Its nothing new that procrastination while attempting to write leads me off in some very strange surfing directions. In my desperation to avoid producing text I clicked on the Legal Issues link on a website and came across this

Links to our site

In creating a link to this site please indicate that we are the source of the information by including an acknowledgement near to/in the link. We would be grateful if you could notify us about the link. Please also ensure that we are not brought into disrepute by the creation of the link; in such cases, we will request the link’s removal (and, if necessary, may bring legal proceedings to seek its removal). Please note that we may move pages on this site or change their address without prior notice.

First off I was interested in their requests (1) Indicate we are the source, (2) Notify us of the link & (3) Don’t bring us into disrepute. While none of these are particularly difficult in any way they seem to indicate a lack of understanding about what a link is.

These are absolutely nowhere near the worst examples: FastCompany wanted you to fax them for permission before creating a link again in 2007 we blogged about a site that absolutely prohibited linking without permission. Here at least you don’t need to ask permission!

Yet, the best part above, is the unfortunate idea that they will take legal actions against any links that bring them into disrepute. Again this is not without precedent: the best must still be the 2001 KPMG song link row.

Finally I enjoyed their informative notice that they may “move pages on this site or change their address without prior notice”. I would really enjoy seeing any site attempt to give prior notice before moving (or removing) a webpage. Would this be considered to be adequate prior notice: “Dear Internet: On the 31 May we intend to delete this page. We are sorry for making you a bit smaller or for any confusion this may create.”?

Linking terms, such as these are odd. They are generally ignored by most users (and most probably unenforceable), if noticed they are definitely bad PR.

The web was never built, and probably never would have been built, if everyone asked and awaited permission. And since the advent of sharing via social media texts like these make even less sens.

The question is why they persist?

Update

TJ McIntyre trumped me via twitter with the news that the Irish always have to be worse 🙂 Irish Charity Told It Needs To Pay A License Fee To Link To A Newspaper Article. Should we laugh or cry?

Posted on by mklang

Could Facebook be a members only social club?

What is public space? Ok, so it’s important but what is it and how is it defined? The reason I have begun thinking about this again is an attempt to address a question of what government authorities should be allowed to do with publicly available data on social networks such as Facebook.

One of the issues with public space is the way in which we have taken it’s legal status for granted and tend to believe that it will be there when we need it. This is despite the fact that very many of the spaces we see as public are actually private (e.g. shopping malls) and many spaces which were previously public have been privatized.

So why worry about a private public space? Who cares who is responsible for it? The privatization of public space allows for the creation of many local rules which can actually limit our general freedoms. There is, for example, no law against photographing in public. But if the public space is in reality a private space there is nothing stopping the owners from creating a rule against photography. There are unfortunately several examples of this – only last month the company that owns and operates the Glasgow underground prohibited photography.

Another limitation brought about by the privatization of public spaces is the limiting of places where citizens can protest. The occupy London movement did not chose to camp outside St Paul’s for symbolic reasons but because the area land around the church is part of the last remaining public land in the city.

Over the last 20 years, since the corporation quietly began privatising the City, hundreds of public highways, public pathways and rights of way in place for centuries have been closed. The reason why this is so important is that the removal of public rights of way also signals the removal of the right to political protest. (The Guardian)

This is all very interesting but what has it got to do with Facebook?

In Sweden a wide range of authorities from the Tax department to the police have used Facebook as an investigative tool. I don’t mean that they have requested data from Facebook but they have used it by browsing the open profiles and data available on the site. For example the police may go to Facebook to find a photograph, social services may check up if people are working when they are claiming unemployment etc.

What makes this process problematic is that the authorities dipping into the Facebook data stream is not controlled in any manner. If a police officer would like to check the police database for information about me, she must provide good reason to do so. But looking me up on Facebook – in the line of duty – has no such checks.

These actions are commonly legitimized by stating that Facebook is a public space. But is it? Actually it’s a highly regulated private public space. But how should it be viewed? How should authorities be allowed to use the social network data of others? In an article I am writing right now I criticize the view that Facebook is public, and therefore accessible to authorities without limitation. Sure, it’s not a private space, but what about a middle ground – could Facebook be a members only social club? Would this require authorities to respect our privacy online?

Posted on by mklang

Cybercontrol 2.0

In a continuing discussion (original & response & reply) on the battles over Internet regulation. Both Nicklas & I are taking points from the past and drawing lines into the future, while taking into consideration the changes created by new technologies. In his last post Nicklas summed it up beautifully:

But as technology becomes more and more powerful, the control over technology will slowly converge with control over people.

Actually for me, control over technology has always been about control over people. Control over technology alone is unimportant. But Nicklas’ point is that our technology is creeping deeper into our lives and minds and therefore control over this technology will not only control the bodies but also the minds of the populous.

The point where we disagree is where we are turning at the moment. For Nicklas

The thing that sometimes worries me is that the alternative is not the status quo. It is not tinkering with the net as is. Because the net will continue to evolve and technology will make us even more powerful. The second time around the alternative to Barlow is not Lessig or even Wu&Goldsmith. It is Solzhenitsyn.

The thing is that Solzhenitsyn is too “easily” seen and eventually resisted. I fear a world where the alternative is Rupert Murdoch an intelligent and powerful man who happily(?) feeds the world Fox news and other trash – knowing that by entertaining us with garbage he controls us and our incomes. Increasingly I think we do not need totalitarian states to control us, its much cheaper to feed us garbage, entertain us with varying levels of porn and gossip and debase politics into punchlines. When the majority is busy with this, the minorities of protesters will not have the power to engage us into major social change.

As an aside: I like the fact that online regulation retains the cyber prefix. It’s dated but ties nicely back to the period when the question was still hotly debated.

Posted on by mklang

Regulation is everything, or power abhors a vacuum

Can we really control the Internet? This is question has been around long enough to be deemed a golden oldie. But like a fungal infection it keeps coming back…

The early battle lines were drawn up in 1996. In an age where cyberspace was both a cool and correct term lawyers like Johnson & Post wrote “Law And Borders: The Rise of Law in Cyberspace” and activists like John Perry Barlow wrote his epic “A Declaration of the Independence of Cyberspace“.These were the cool and heady days of the cyberlibertarians vs cyberpaternalists. The libs believed that the web should & could not be regulated while the pats meant that it could and should. (I covered this in my thesis pdf here) Since then the terminology has changed but sentiments remain the same.

I miss the term cyberspace. But more to the point the “could/should” control argument continues. Nicklas has written an interesting point on the could part:

Fast forward twenty years. Bandwidth has doubled once, twice, three times. Devices capable of setting up ad hoc networks – large ones – are everywhere. Encrypted protocols are of state-defying strength and available to everyone. Tech savvy generations have grown up to expect access to the Internet not only as a given, but as unassailable. Networks like Anonymous has iterated, several times, and found topologies, communication practices and collaboration methods that defy tracking. The once expensive bottleneck technologies have become cheaper, the cost of building a network slowly approaching zero. The Internet has become a Internet that can be re-instantiated for a large swath of geography by a single individual.

So far so good. Not one internet but personal portable sharable spaces. The inability to control will lead to a free internet. But something feels wrong. Maybe its a cynical sadness of having heard this all before and seeing it all go wrong? From his text I get images of Johnny Mnemonic and The Matrix basically the hacker hero gunslinger fighting the anonymous faceless oppressive society. Its cool, but is it true?

The technology is (on some level) uncontrollable (without great oppression) but the point is that it does not have to be completely controlled. The control in society via technology is not about having 100% surveillance and pure systems which cannot be hacked. Control is about having reasonable amounts of failure in the system (System failures allow dissidents to believe they are winning).

The issue I have with pinning my hopes on the unregulatable internets is that they are – in social terms – an end to themselves. Who will connect to these nets? Obviously those who are in the know. You will connect when you know where & how to connect. This is a vital goal in itself but presents a problem for using these nets in wider social change. Getting information across to a broader section of the population.

Civil disobedience is a fantastic tool. But if the goal is disobedience in itself it is hardly justifiable in a group. If the goal is to bring about social change: ie. the goal is for a minority to convince a majority then the minority must communicate with the majority. If the nets are going to work we need to find ways for the majority to connect to them. If the majority can connect to them then so can the oppressive forces of regulation.

On the field of pats & libs I think I am what is a cynical libertarian. I am convinced of the power, value, social & individual power of non-regulation of technology but I don’t believe that politicians and lobbyists will leave technology alone. It’s an unfortunate truth: power hates a vacuum.

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Empowered citizens or Digital dairy cows: Notes on a lecture

The purpose of today’s lecture was to familiarize the audience with social media and what they may need to know about it. The lecture began with examples of what the media reports when social media is mentioned. The interesting thing is that media today has turned from the previously optimistic position to being more openly critical. To exemplify this I used three recent examples from Swedish media where the papers reported that research showed: smart phones make us selfish, Facebook spreads unhappiness & the need to be connected causes insomnia among young people.

Generally speaking the extremes of the debate either view social media as revolutionary (and fundamental for the Arab spring) or trivial. Defining the Arab spring as a Facebook revolution degrades the pain, suffering and efforts of the individuals doing the work. My example of the trivial is a response from an older professor when he heard I was working on an article on Twitter:

“Twitter? Isn’t that where everyone talks about what they had for breakfast?” Just as with the revolutionary view of social media this may have a grain of truth. Social media can be used for trivial conversation but it would be incorrect to see social media as only trivial. It may also be important to remember that most conversation is trivial. Trivial conversation is what creates and maintains social relations.

The approaches to social media belong to a longer tradition of techno-optimism and pessimism. My examples of optimism are a quote from Wikipedia:

Social media…At its most basic sense, social media is a shift in how people discover, read and share news, information and content. It’s a fusion of sociology and technology, transforming monologues (one to many) into dialogues (many to many) and is the democratization of information, transforming people from content readers into publishers. (Wikipedia, May 2009)

What does “the democratization of information” even mean? My second optimism example is Time Magazine’s choice of YOU as person of the year in 2006.

My choice of pessimists were a quote from Andrew Keen’s The Cult of the Amateur: How today’s Internet is killing our culture” (2007)

“Out of this anarchy… what was governing the infinite monkeys now inputting away on the Internet was the law of digital Darwinism, the survival of the loudest and most opinionated.”

Say what you like about Keen, but he is extremely clear about his position. The second pessimist quote is from Baroness Professor Susan Greenfield:

“My fear is that these technologies are infantilising the brain into the state of small children who are attracted by buzzing noises and bright lights, who have a small attention span and who live for the moment.”

From here the lecture moved on to the developments to what led to social media decade and the changes our new toys have caused. Naturally there are profound changes occurring all around us but the small stuff is fun to note.

The Wordfeud app is an interesting example. A couple of years ago admitting of regularly playing Scrabble may have been a form of social suicide – today things have changed and we happily boast of a high score. Similarly, a few years ago looking at pictures of your friends, enemies and other loose ties would have been voyeurism and maybe borderline stalking – today it’s just Facebook. Our use of technology has normalized abnormal behavior.

Our connectivity and our toys have also diminished our need for boredom – a feeling that may have filled an important purpose. I have written about Boredom as source of creativity earlier.

At this point the lecture moved on to some important points about what technology can do. Beginning with my favorite example of the Tokyo park bench read it here.

When we look at the effects of social media the most important point to begin with is the seminal quote by blue_beetle

If you’re not paying for something, you’re not the customer; you’re the product being sold

I like this quote but I have always felt that there was something missing. We are not really the product – we are the creators of the product, which is data. We are digital dairy cows and the product is digital milk.

A social change caused by social media is our relationship with our contacts. We are the stars in our own performance attempting to present our ordinary lives in extraordinary ways. We document our lives for the entertainment of others – or maybe for the creation of the image of a more exciting life. As an example I showed my coffee project (a mix of entertainment, amusement & sadism – to be explained in a later blogpost).

In order to understand more about what we are doing it is good to know what the controllers of the infrastructure think about. It is important to understand the digital dairy farmers.

One of the main players is Mark Zuckerberg and his position on “radical transparency”

“You have one identity… The days of you having a different image for your work friends or co-workers and for the other people you know are probably coming to an end pretty quickly… Having two identities for yourself is an example of a lack of integrity”

There are several things wrong with this position (not even focusing on the fact that his company profits from this position). According to Zuckerberg the days may be coming to an end (which I seriously doubt) but what to do now? The media is full of examples where individuals have been punished (socially or economically or more) for information that may not have been illegal or even immoral.

In addition to this Zuckerberg has claimed that privacy is no longer a social norm. Additionally, Zuckerberg’s goal seems to create a personalized view of the world (check out Pariser’s Filter Bubble or some stuff on personalization I wrote here). In Zuckerberg’s own chilling words:

A Squirrel Dying In Your Front Yard May Be More Relevant To Your Interests Right Now Than People Dying In Africa.

It is worrying that Zuckerberg is profiting from pushing these positions at the same time as he develops a technology that promotes excessive sharing and profits from the same.

So if social media is not going to show social responsibility, then who will fix this problem?

Usually we turn to the law. However the law is all focused on concerns with Orwell’s view of surveillance via Big Brother. But today we are the ones giving away our information for the sake of convenience and entertainment – we are in the controlled world of Huxley’s Brave New World (check out the Orwell/Huxley paradox here).

So we are left to our own devices – in more ways than one. What can we expect of the future? First we will see an increased efficiency in personalization (as I have written earlier):

The same is true of information. The sweet and fatty information in a long historical context was an understanding of who was allied with whom? Who is sleeping with whom? And whom can I get my genes over to the next generation (obviously just a nicer way of thinking about getting laid!). This is why we today have a fascination about gossip. Which minor celebs are attempting to sleep with each other takes up an extraordinary part of our lives. But this was all ok since the access to gossip was limited. Today, however, we are connected to the largest gossip engine ever conceived. Facebook may try to hide it in its spin, but part of our fascination is all about looking at each other. The problem is that there is only a limited amount of time in life and spending too much time on gossip limits our ability for more relevant information. We are becoming information obese and the solution is to decrease fatty information intake and go to the information gym regularly.

The development of walled gardens or information silos… Facebook (and other silos) is branding us like the cattle we are. By attempting to lock our behavior into their site and prevent us from leaving they are diminishing our freedom – a freedom which was originally created in the design of the Internet and is being subverted by the growth of social media (Read Long Live the Web by Tim Berners-Lee).

We are not going to be helped from our locked stalls by either law or corporations. We are left to practice thoughtful self-restraint and hope that the law will eventually catch up with our technology and needs.

The slides I used are here.

Posted on by mklang