Technology, Thoughts, and Trinkets » Reviews

Review: Islands of Privacy

Christopher — Thu, 18 Aug 2011 19:07:12 +0000

Image Courtesy of University of Chicago Press

Christena Nippert-Eng’s Islands of Privacy is an interview-intensive book that grapples with how her sample group of Chicago residents attempt to achieve privacy, and the regular issues they face in maintaining privacy on a day-to-day basis. She finds a strong correlation between those who have had their privacy violated and those who want to secure and defend privacy as a concept and important element of their lived experience. 74 interviews were conducted with residents of Chicago and she makes very clear that her findings and conclusions are consequently highly contingent: other populations across America and the world would likely result in very different understandings of what constitutes privacy and a violation.

Privacy is defined quite early as “about nothing less than trying to live both as a member of social units – as part of a number of larger wholes – and as an individual – a unique, individuated self” (6). Further, privacy is identified as something to be managed: it exists by managing public information. Information is seen by participants as inherently public, with effort required to make it private, though interviewed subjects do not necessarily stick to this understanding of privacy throughout their interviews. On the whole, the approach to privacy remains wrapped up in the language on control, seclusion, and selective sharing of information; in this sense, Nippert-Eng’s work can be seen as a fusion of Westin’s Privacy and Freedom and key tenets of Nissembaum’s work in Privacy in Context: Technology, Policy, and the Integrity of Social Life.

She has organized her book into four chapters, along with an introduction and conclusion. This sees her focus on secrets and secrecy, wallets and purses, cell phones and email, and doorbells and windows. Each of these focuses are used to tease out different ways that privacy is understood, achieved, and violated by her interview subjects. The chapters are well organized and keep to their themes. The chapter on secrets, in particular, could be seen as a useful extension of Lawrence M. Friedman’s work in Guarding Life’s Dark Secrets: Legal and Social Controls over Reputation, Propriety, and Privacy, which lacked contemporary interviews to understand how secrecy and privacy function in the minds and actions of ‘everyday people’ in the contemporary American setting. The chapter does not, however, engage with any of the excellent analysis undertaken by Judith Wagner Decew in In Pursuit of Privacy: Law, Ethics, and the Rise of Technology, which left this reader disappointed. Decew’s work in mapping the context of privacy would have fit beautifully into many elements of Nippert-Eng’s work by nuancing understandings of privacy and secrecy, but it never appears. The section on cell phones and email can be read profitably against Turkle’s recently released Alone Together, providing yet more context and in depth interviews about how people see mobile devices as (dis)integrating their lives.

I remain unconvinced about the usefulness of the ‘beach’ metaphor that is laid out at the beginning of the book and the conclusion. In short, beaches are used to explain the domains of privacy that the author is interested in: privacy at the boundary points between clearly ‘public’ and ‘private’ domains. This continues from her work on boundary-play, but I would have preferred a more direct explication – the metaphor is not used in a strong enough way, throughout the book, to create a lasting positive impression or make particularly complicated theory more accessible.

The book’s real gems are scattered throughout the interviews; privacy and surveillance scholars will not necessarily be surprised by what subjects say, but Nippert-Eng enables scholars to better ground ground their work on exactly what people say about privacy in their daily experiences. This can facilitate a firmer foundation upon which highly theoretical arguments around privacy and surveillance can be built around and upon. Of course, the small sample size does limit how strongly her interviews can be relied upon; arguably scholars working on American privacy issues will be best served and international scholars less so.

Ultimately, Nippert-Eng has provided a real contribution to the literature by making available years of empirical research and reaffirming conclusions that the literature has come to by way of theorization. In this way, Islands of Privacy offers strong empirical support for existing theoretical work, better grounding scholarly work and offering novel ways of articulating issues and problems that scholars have grappled with for decades. If you are invested in the sociological analysis of privacy and surveillance, or are looking for strong empirical grounding for some abstract theorizations of either, then this is a good book to add to your library.

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Review of The Googlization of Everything

Christopher — Mon, 18 Jul 2011 20:56:37 +0000

Image Courtesy of the Berkman Center For Internet & Society

Siva Vaidhyanathan’s The Googlization of Everything (And Why We Should Worry) is a challenging, if flawed, book. Vaidhyanathan’s central premise is that we should work to influence or regulate search systems like Google (and, presumably, Yahoo! and Bing) to take responsibility for how the Web delivers knowledge to us, the citizens of the world. In addition to pursuing this premise, the book tries to deflate the hyperbole around contemporary technical systems by arguing against notions of technological determinism/utopianism.

As I will discuss, the book largely succeeds in pointing to reasons why regulation is an important policy instrument to keep available. The book also attempts to situate itself within the science and technology studies field, and here it is less successful. Ultimately, while Vaidhyanathan offers insight into Google itself – its processes, products, and implications of using the company’s systems – he is less successful in digging into the nature of technology, Google, culture, and society at a theoretical level. This leaves the reader with an empirical understanding of the topic matter without significant analytic resources to unpack the theoretical significance of their newfound empirical understandings.

Essential Assumptions and Key Facts

Vaidhyanathan quickly establishes a key condition to his argument early in the book, writing that

If Google is the dominant way we navigate the Internet, and thus the primary lens through which we experience both the local and the global, then it has remarkable power to set agendas and alter perceptions. Its biases (valuing popularity over accuracy, established sites over new, and rough rankings over more fluid or multidimensional models of preservation) are built into algorithms. And those biases affect how we value things, perceive things, and navigate the worlds of culture and ideas (7).

By the conclusion of the book we are left with less clarity concerning the veracity of these statements. Is Google or Facebook (and other social networking sites) key to understanding the local and global? If not Google, then does it retain its “remarkable power to set agendas and alter perceptions”? While the author does indicate that Google is widely used, by the end of the book the degree to which individuals use Google as their “primary lens” to view the world is unclear. As a result, the extent to which Google’s biased algorithms are influential in policy making and agenda setting are less obvious than implied.

The author argues that Google should not be seen as a ‘monopoly problem’. Instead, we should ask about what Google does, specifically, and how its actions contrast against competitors’. Further, we should ascertain what competitors might do in the future – is Google foreclosing possibilities or opening up new spaces where competition might thrive? Such competition is unlikely to come from the state in its present configuration because Google’s very success is predicated on the state’s public failures. Such failures occur whenever

instruments of the state cannot satisfy public needs and deliver services effectively. This failure occurs not necessarily because the state is the inappropriate agent to solve a particular problem … it may occur when the public sector has been intentionally dismantled, degraded, or underfunded, while expectations for its performance remain high (40-1).

Today’s state still possesses a key tool: regulation. In line with many commentators, Vaidhyanathan raises the question of whether Google or other elements of the information economy are appropriately regulated, with the argument being that they are not. Lack of regulation is perhaps most significant when considering Google’s interests in hosting and serving content (through services like Blogger and Picasa) and scan and service services (such as Streetview and Books). Given Google’s role in providing these service-types the state should be more involved in mediating and overseeing them.

Turning to search, Google’s approach to identifying value – links – establishes as kind of techno-centric currency that favours “high-motivated and Web-savvy interests over truly popular, important, or valid interests. Being popular or important on the Web is not the same as being popular or important in the real world” (62-3). One can quickly ask questions of what ‘popularity’ is defined as and whether it inherently has a link to the normative positioning of the ‘real world’ as a site of ‘truly’ popular, important or valid interests. This evokes a strong normative rhetoric emphasizing particular conditions of knowledge generation over others without effectively defining the legitimacy or drawing on theory that prioritizes ‘real world’ methods of evaluating knowledge over digitally driven approaches.

Google and Privacy

There is a sustained critique on Google’s general approach to privacy in the book, with Vaidhyanathan (generally) arguing that Google lacks transparency in its actions and thus limits uses’ sustained awareness of the universality of Google’s surveillance. Though Vaidhyanathan is generally critical of the surveillance studies literature – pointing to Lyon and those most closely associated with Queens’ efforts to unpack surveillance as a site of academic investigation – he nevertheless recognizes that Google is (at an ontological level?) “a system of almost universal surveillance, yet it operates so quietly that at times it’s hard to discern” (84).

In his account of Google and privacy, Vaidhyanathan writes that “Mayer and Google in general misunderstand privacy. Privacy is not something that can be counted, divided, or “traded.” It is not a substance or collection of data points. It’s just a word that we clumsily use to stand in for a wide array of values and practices that influence how we manage our reputations in various contexts” (87). Subsequently he draws out an interesting set of “privacy interfaces” through which our reputations are ‘managed’. Specifically, these interfaces include:

person-to-peer
person-to-power (e.g. student to teacher)
person-to-firm
person-to-state
person-to-public

Google and other online vendors have an obligation to present effective ways for users to manage their privacy and, as it stands now, this is not the case. An important point that Vaidhyanathan draws out is that “[c]elebrating freedom and user autonomy is one of the great rhetorical ploys of the global information economy … meaningful freedom implies real control over the conditions of one’s life. Merely setting up a menu with switches does not serve the interests of any but the most adept, engaged, and well-informed” (89). It is truly unfortunate that many of the so-called ‘privacy options’ in large web environments amount to confused check boxes that are oftentimes ill-defined, mutable over time, and coated in legalese. Vaidhyanathan doesn’t go far enough, however, because his critique isn’t extended t consider what it would mean for companies like Google to seriously include society in the construction of a privacy policies or settings.

Google, Revolution, and Information Policy

New information technologies are often credited for events far in excess of the tools’ capabilities. Such excesses – or hyperbole – adhere to the mythification of communications systems when first launch (Mosco’s The Digital Sublime: Myth, Power, and Cyberspace is an excellent read on the subject). Vaidhyanathan recognizes that while new communications systems can amplify existing structures and processes, amplification is possible only when “the movement already has form, support, substance, and momentum. Technologies are far from neutral, but neither do they inherently support either freedom or oppression” (123). While true when speaking to the inherent value of technologies, it can nevertheless be stated that certain technical systems contain structural biases that may lend themselves to particular social configurations and uses. An automatic firearm or intercontinental ballistic missile contains one value set, whereas a garden planter or wine cork arguably possesses a significantly different set.

When speaking on the future of information policy, we read that the Google Books project might best be read as an attempt to radically change policy by a class-action lawsuit instead of via actual public policy decisions. While there is, admittedly, a serious concern with such efforts and policy changes they are not new: a glance at telecom policy developments/reform in America and Canada alike over the past decade reveal agreements and conflicts between private companies as drivers of state action/configuration. Nevertheless, the hijacking of what are clearly public matters by private corporations motivated by profit is disturbing and something that needs to be addressed at the highest level.

Critical Engagements

From the outset of the book I had expected a persistent and engaged questioning of the normative conditions undergirding Google’s projects. Unfortunately, I found a (largely) uncritical argument that was committed to elite notions of what constitutes truth and normative presuppositions of what constitutes valid scholarly inquiry. Together, this combination limited the analytic rigour of Vaidhyanathan’s arguments or their capacity to ‘travel well’ to other sites of analysis.

Consider his examination of Google Scholar. The product ranks different articles based on the citations they receive. When searching the tool users are given results from across the disciplines. This kind of tool brings the titles of academic research to the public’s eye (access to articles is another matter…) but the service is apparently problematic. Why? Because, “according to academic librarians, Google Scholar has been constructed with Google’s usual high level of opacity and without serious consideration of the needs and opinions of scholars” (192). While true that many of the search features of ‘academic’ search engines are lacking Vaidhyanathan (and his uncited ‘academic librarians’) misses the importance of design: do present modes of academic search meet his objective of a system that allows for the easy acquisition of knowledge? No. Instead they demand high levels of training and skill to use. Thus, under his argument against Google’s privacy options it would seem as though the present ‘scholarly’ search methods are as bankrupt as Google’s privacy options, with the major difference being that we can trust librarians because of their ethos of protecting users and information.

So, librarians are a trusted source of knowledge filtering and the university remains a bastion of knowledge accumulation and storage. While both of these statements are (arguably) true they contain germs of modernist assumptions concerning appropriate repositories of knowledge. These trusted sources – which are ostensibly meant to work in the public interest – are to be relied upon in establishing a new information economy. Impressing this role on the elites without a sustained engagement with their own histories, projects, biases, and the lack of sustained consideration of how the ignorant end-users who are victims to Google can contribute to a new knowledge economy is a critical weakness of the book. It speaks to a placement of priorities that is out of line with the integration of worldly experiences of daily users.

Accompanying this presupposed valuing of the elites are hosts of normative assertions that lack the critical engagements one would expect from a science and technologies studies scholar. Consider:

It is only common sense that we should support policies meant to foster innovation and the cheap, easy acquisition of knowledge. What that infrastructure should look like, however, and how we can achieve it, are questions we need to consider very seriously (201).

By evoking the term ‘common sense’ any competing priorities or worldviews are immediately dismissed. Perhaps the statement is, in fact, accurate but the necessary conjoining of ‘innovation’ and ‘cheap easy acquisition’ of knowledge may lack logical coherence for a ‘tribal group’ (which Vaidhyanathan links with minority cultures suffering from cultural oppression and extinction) that values the stability of technology and culture, and that values the challenge of self- and technical-mastery. Such tribal/cultural bodies, perhaps encouraged to retain cohesion through the Web and Google, lack clear integration with the infrastructure that must be achieved. Their concerns, ostensibly, are not serious enough to take into consideration.

Consider also bold statements about the nature of humanity: we “seek maximum speed and dexterity rather than deliberation and wisdom” (80). While this might be true in many cases, the broad generalization limits the argument that Google must be watched because they feed off such flawed human instincts. While perhaps true that Google feeds on certain facets of how key elements of the elite engage with information it doesn’t necessarily follow that humanity as a whole engages similarly. As a result we see a colonization of the potentialities of humanity and thus suggestions on how key facets of the information economy are to be regulated without a broad and sustained analysis – normative statements back-fill what should be normative arguments and thus permit policy discussions that preclude non-elite participation.

There are also dismissive accounts of entire branches of the academy, with cultural imperialism in particular being termed a “useless cliche” that is “in severe need of revisions” on the basis that scholars of cultural imperialism are “ignoring real and serious imbalances in the political economy of culture” (109). This is all done in the space of a single paragraph, and without real consideration of the back and forth in this field. Vaidhyanathan is effectively staking his ground in an editorializing fashion. He similarly dismisses the leading scholars in Surveillance Studies – never bothering to genuinely engage with the literature in any sense – though recommends Kevin Haggerty as taking a “refreshing approach to studying surveillance without the Panopticon model”.

His analysis of Habermas, a key thinker that engages with what it means to develop a public sphere, is frightfully limited to the point of being inaccurate. After stating that concern “for the fate of the nation or local affairs … drove people to assemble and deliberate” he moves on to assert that the “global public sphere, however, is necessarily cosmopolitan in temperament. Therefore, members of a global public sphere must culturally cohere in some way. Either they must share a language, or they must share a value system and a common notion of trust and validity. We are far from having such a system, and it’s not clear that it’s in everyone’s interest to create one” (137). This positioning of Habermas fails to recognize that deliberation itself constitutes a process of testing and retesting validity claims that constitute a conditional, temporally approximate, understandings of truth or knowledge. It similarly fails to acknowledge key lessons from Habermas’ Inclusion of the Other, namely that while language is a key element to the deliberative process an identically configured life-world is not the aim of deliberative politics. Instead, the goal of any cosmopolitan body ought to be the fulfilment of essential democratizing principles that aspire to respect the conditions for discourse and dignity of the person. Habermas is arguing for a conditional, post-metaphysical realization of truth and cosmopolitan principles rather than the (near) metaphysical conditions for democracy and cosmopolitanism that are ascribed by Vaidhyanathan.

Conclusion

At the conclusion of the book I was admittedly disappointed: I felt let down by Vaidhyanathan after he’d promised a serious science and technology studies analysis of Google and instead provided a liberal, relatively non-critical, examination of Google. Non-critical shouldn’t be taken in the sense that critiques weren’t put forth to Google but in the sense that this text is not situated within the auspice of critical theory. This lacking doesn’t make the book bad, though it does limit what could have been a more introspective accounting of both Google and the society that it exists within.

If you’re looking for theory about the process of technology’s mythification and its demystification then I’d recommend Mosco’s The Digital Sublime. If you’re looking for a critical, cutting edge, accounting of technology in society then I’d suggest you pick up Feenburg’s Between Reason and Experience. If you’re looking for an overview of Google and the challenges that many liberal scholars, legal analysts, privacy advocates, and copyright lawyers have with the company then this book for you.

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Review of The Offensive Internet: Speech, Privacy, and Reputation

Christopher — Fri, 08 Jul 2011 19:55:43 +0000

Image Courtesy of Harvard University Press

The Offensive Internet: Speech, Privacy, and Reputation is an essential addition to academic, legal, and professional literatures on the prospective harms raised by Web 2.0 and social networking sites more specifically. Levmore and Nussbaum (eds.) have drawn together high profile legal scholars, philosophers, and lawyers to trace the dimensions of how the Internet can cause harm, with a focus on the United States’ legal code to understand what enables harm and how to mitigate harm in the future. The editors have divided the book into four sections – ‘The Internet and Its Problems’, ‘Reputation’, ‘Speech’, and ‘Privacy’ – and included a total of thirteen contributions. On the whole, the collection is strong (even if I happen to disagree with many of the policy and legal changes that many authors call for).

In this review I want to cover the particularly notable elements of the book and then move to a meta-critique of the book. Specifically, I critique how some authors perceive the Internet as an ‘extra’ that lacks significant difference from earlier modes of disseminating information, as well as the position that the Internet is a somehow a less real/authentic environment for people to work, play, and communicate within. If you read no further, leave with this: this is an excellent, well crafted, edited volume and I highly recommend it.

The Internet and Its Problems

Solove kickstarts the collection with his essay, ‘Speech, Privacy, and Reputation on the Internet.’ His general argument (and that of many other contributors) is that there must a ‘rethink’ on notions of privacy, insofar as privacy must be re-calibrated against freedoms of speech to better balance the two principles. With the rise of Web 2.0 there is a sliding scale of what is considered worthy of publication; in the early-mid 20th century journalists may have focused on issues and topics that were in the general public interest but, as everyone becomes a publisher, what constitutes ‘general interest’ is increasingly focused on smaller and smaller audiences. As a result, more is being written about those of (relatively) inconsiderable import and when such writings are defamatory, hurtful, or otherwise harmful the authors of the speech are protected under Section 230 of the Communications Decency Act from potential legal rejoinders. To rebalance privacy and free speech – with the argument being that free speech is presently over-privileged – Solove suggests adopting a notice and takedown system akin to that included in the Digital Millennium Copyright Act (DMCA). While the DMCA is oft-criticised for being overly broad and inappropriately used by rights-holders to chill speech, Solove insists that similar problems would not arise because:

abusing takedowns should be penalized;
whereas copyright interests are well-resourced this is not often the case with defamation and privacy complainants.

It is important that some kind of rebalancing/effective redress system is adopted, in Solove’s argument, because there is no guarantee that exposing the foibles of one another will lead to a shift in social ideals to accept such foibles. Instead, it is just as likely that there will simply be more people hurt – the exposure of others does not necessarily mean that one changes their own perceptions of the nature of social norms. His concerns echo those of Mayer-Schonberger’s book, Delete: The Virtue of Forgetting in the Digital Age.

Whereas Solove emphasizes a take-down approach, Keats Citron explores the destructive nature of online mobs and how the Internet magnifies harmful behaviour. She rejects the notion that individuals can, and should, combat mobs alone and instead argues that “robust protection of cyber civil rights would promote more valuable speech than it would inhibit” (33). Drawing on literature of group behaviours, she identifies four central ways in which the Internet aggravates cyber mob behaviour:

groups with homogeneous views tend to become more extreme when they deliberate;
group members often lack a sense of personal responsibility for their acts;
groups are more destructive when they dehumanize their victims and are more aggressive when authority figures support efforts;
“Cyber mobs see victims as digital images that can be eviscerated without regret” (37).

Whereas criminal law and civil torts cannot reach the harms experienced by individuals, groups, or society as a result of mob behaviour, civil rights laws do address such shortcomings. Given that self-expression is key to autonomy there should be minimal protection of expression that is primarily (or even solely) meant to extinguish others’ expressions. This may mean that website operators are held accountable for facilitating anonymous attacks, and this may in fact lead to the protection of groups’ civil rights by limiting the capacity for the mob to form in the first place.

Picking up on the challenges that can arise from anonymous online speech, Levmore tries to tackle the issue in “The Internet’s Anonymity Problem.” Specifically, he argues that the novelty and free speech claims that have protected the Internet from legal regulation have resulted in excessive costs to the targets of offensive speech. Such costs might be diminished by moving to an Internet that integrates identification or notice-and-takedown policies. Given that Section 230 of the Communications Decency Act was put into place in the 1996 to let the Internet grow – the Internet was, at the time, a nascent space that could have had its growth stunted by onerous or overzealous laws – the present ‘mature’ state of the Internet suggests that it is time to repeal this section. Today the Internet suffers from both juvenile and hurtful comments, as well as from a high noise-to-signal ratio that imposes costs to find, filter, and manage information online. In shifting to a ‘non-anonymous’ Internet Levmore believes that there would be fewer of these hurtful comments and a better signal-to-noise ratio, though he does grant that a ‘simple’ notice-and-takedown system may be appropriate for some online venues. Ultimately, however, he asserts that Section 230 should be repealed and that Internet providers be recognized more like newspapers by becoming liable if they do not impose or enforce takedown, notice, or non-anonymity principles and laws.

Nussbaum’s contribution to the book, titled “Objectification and Internet Misogyny,’ asserts that the online community must confront objectification when it occurs online, especially when such actions relate to the historical (misogynistic) objectification of women as instrumental for male pleasure. In particular, she finds that the key facets of objectification as it relates to online mob-like behaviour aim to:

reduce to body;
reduce to appearance;
silence.

Each of these elements are key to ‘shame justice’, which is “justice by the mob: the dominant group are asked to take delight in the discomfort of the excluded and stigmatized” (73). To those who make assertions that misogyny and shame are ‘typical’ or ‘historical’ practices she responds as such: “To say, “It’s traditional,” and “It’s part of culture” is not to dispense with the need for an account” (75). Thus, in investigating the case of misogyny online we (re)articulate underlying problems surrounding the social conditions of masculine development, the legitimacy of using shame to hijack the agency of a person’s mind, social relationships, and access to employment, and the relationship between online misogynistic behaviour and gender-based hate crimes. Ultimately, she avoids making the strong policy claims of the other contributors to this section, instead arguing that it is key to educate men about the acceptability of weakness, to educate men of the inherent value of women, and to dissolve or reform modernistic assumption of male identity in order to address the roots of misogynistic violence and harms.

Reputation

Cass Sunstein’s “Believing False Rumors” continues his project of articulating the harms that arise when individuals engage in discourse. His work is excellent, though (arguably) derivative of his books Infotopia: How Many Minds Produce Knowledge and On Rumors: How Falsehoods Spread, Why We Believe Them, What Can Be Done. In essence, the liberal ideal that the marketplace of ideas will sort out falsehoods is demonstrably incorrect, especially when applied to the Internet. As a result, some kind of chilling effect on false statements of fact is important to establish, both to limit harm inflicted onto others and to enhance the functioning of democratic discourse. A danger, noted by Pasquale in his “Reputation Regulation: Disclosure and the Challenge of Clandestinely Commensurating Computing,” is that the spread of information online (sometimes including false facts and rumors) can be incorporated into reputation systems that impact citizens and customers. As a result, he argues that legislation is required to make such systems more just. Legislation must:

“…ensure that key decision makers reveal the full range of online sources they consult as they approve or deny applications for credit, insurance, employment, and college and graduate school admissions” (108);
address the use of reputation score systems to avoid black-box evaluations that defeat the aims of accountability and transparency of choices made.

Speech

Brian Leiter’s contribution, “Cleaning Cyber-Cesspools: Google and Free Speech,” argues that the potential chilling effects of overturning Section 230 of the Communications Decency Act are overstated and unduly protect low-speech at the expense of people’s dignity. He defines the cyber-cesspool as

an amalgamation of what I will call “tortious harms” (harms giving rise to causes of action for torts such as defamation and infliction of emotional distress) and “dignitary harms,” harms to individuals that are real enough to those affected and recognized by ordinary standards of decency, though not generally actionable. (155)

Identifying Mill (the theoretical source of many of the claims that the marketplace of ideas/speech will sort out falsehoods) as a radical empiricist on the basis that he insists that all truth and knowledge are a posteriori, Leiter maintains that there is some speech (e.g. Jane Doe ought to be forcibly sodomized) that is absolutely without moral standing. Online, harms from speech are made worse by Google and the protection Section 230 affords to intermediaries (e.g. blog operators). The repeal of this section would not impact “the ability of individuals to speak freely, just in their ability to exercise that purported right to speak freely in cyberspace” (167).

Leiter emphasizes Google’s role in making content from cyber cesspools highly accessible to casual web surfers, and argues that Section 230 should be repealed and make Google liable “for its negligence in disseminating tortious material” with an addendum that a “more radical proposal would make Google liable for disseminating material constituting dignitary harms as well; I remain agnostic on whether that would be advisable” (171). To avoid liability Google ought to set up a “panel of neutral arbitrators who would evaluate claims by private individuals that Google is returning search results that might constitute tortious or dignitary harms” and second that “the Google panel would have authority to provide several possible remedies in the event it concurs with the complainant that the material in question is more likely that not to constitute actionable material or a dignitary harm” (170). I remain unclear as to why, exactly, Google should be required to establish such panels and make private decisions about the nature of free speech; it seems like this is a task for the judiciary. Shouldn’t the Department of Justice, to follow his claims, be responsible for assigning a team of judges to determine each and every claim of harm and assure that their decision falls within the confines of existing case law? Further, the position that Google somehow ‘disseminates’ information like a newspaper fails to acknowledge the fundamental difference between ‘push’ and ‘pull’ modes of delivering content: unlike a broadcaster, Google’s expressions of speech (which are, effectively, what algorithmic search is equatable to) are called upon by users rather than imposed on the individual using the Web. They are not curators of the Web but instead rely on the claims of others to assert their own suggestions based on search terms; broadcasters, on the other hand, are curators. That individuals have chosen to see Google as a curator does not make Google a curator any more than people choosing to believe that I am a professor makes me an actual professor.

Stone’s “Privacy, the First Amendment, and the Internet” is based around the argumentative point that “[i]f speech is sufficiently valuable to merit First Amendment protection when it is spoken over a backyard fence or published in a local newspaper, then (at least presumptively) it is also sufficiently valuable to be protected when it is disseminated on the Internet … as a matter of first approximation, the fact that speech on the Internet can cause more harm than speech in a local newspaper is not a reason to accord it any less protection under the First Amendment. The balance between value and harm remains more or less constant” (175-6, emphasis added). In considering what kinds of speech are actionable he rightly notes that it is important to be careful about what is meant by a ‘threat’ under the law (and that thus is illegal speech). Specifically, “incitement to commit unlawful conduct does not mean statements that might cause others to commit crimes or even statements that are intended to encourage other to commit crimes … for speech to be punishable as incitement, it must expressly incite unlawful conduct” (186, emphasis added). Regardless of the nature of the law, social and technological change means that privacy laws cannot effectively address non-newsworthy invasions of privacy (though they may be able to address some of the worst threats online). Referring to Brandeis and Warren’s tort, Stone notes that “… even if the First Amendment itself is not sufficient in principle to “swallow the tort,” the combination of the First Amendment and social and technological change has, for all practical purposes, gobbled it up completely. To argue otherwise is simply to tilt at windmills” (193).

Expressly engaging with the issue of collective privacy rights – where the rights of members of a collective are in contradiction – Strahilevitz suggests that privacy laws begin to recognize, and courts adopt, constructive partition. Such a partition fragments a collective resource and assigns elements of it to the collective’s members. Admittedly this is an imperfect solution – sometimes interests are inextricably linked – but at least offers a way to address some of the collective privacy issues involved in FOIA requests.

Privacy

Rodrigues’ essay rounds out the book, and it really is one of the absolute highlights. In “Privacy on Social Networks: Norms, Markets, and Natural Monopoly” he argues that there are privacy issues with social networks and that a key way of addressing them involves encouraging competition between networks so that privacy (in effect) becomes one of many points these networks compete on. He acknowledges that while people share personal information on social networks it is predominantly shared for ‘semi-public’ purposes; in most cases, controls and mitigating elements preclude the information’s absolute sharing of information. To conceptualize the elements of privacy-based competition in social networks he identifies the following facets:

Privacy policies – reflective of contractual relationships between the site and user(s);
Privacy practices – how the privacy policies are actually implemented;
Privacy controls – means by which users can control their personal information;
Data security – how diligent the site is in actually securing data from outside forces.

Rodrigues points to Facebook as the incumbent ‘natural monopoly’ that is largely dependent on its vast network effect to achieve financial success and usefulness for its users. The worry is that a monopolist may raise switching costs by locking users in, while simultaneously exploiting its monopoly power to erode past privacy practices “in exchange for greater income by directly reselling personal information and contact information, despite the interests of its entrenched users” (245). To alleviate the power of the natural monopoly he suggests that the government establish data portability regulations, enabling users to freely move between networks and thus enabling competitors to rapidly scale if the monopolist (or other competitor) acts in a manner contrary to users’ privacy desires. While some might point to the ‘successful’ petitions that Facebook users launch when the company initiates particularly onerous and privacy invasive changes to the service, Rodrigues argues that these petitions happened with competition “lurking in the background”; “in the end the profitable alternative will be the path that Facebook takes” (255).

Issues and Concerns

Laden throughout the book is a (legitimate) concern for the harms that can befall people who are defamed, mobbed, or targeted online in disingenuous ways. Many authors take issue with Section 230 of the Communications Decency Act, arguing that without the protections afforded by this section the law would be better resourced to persecute those engaged in hate crimes, defamation, and so forth. In most of these cases, authors assert that what would suffer is largely ‘low value’ speech instead of ‘high value’ speech, and that abuse of a notice-and-takedown or identification regime would likely be marginal at best. It is important to recognize claims these for what they are: normative assertions of the value of particular venues and modes of speech. Under proposed changes, sites like 4chan.org would be almost immediately dissolved, to say nothing of many IRC channels, and website owners would suddenly face liability if they refused to take down content on First Amendment grounds. In essence, proposals to remove Section 230 will arguably see a massive increase in the already large number of Strategic Lawsuits Against Public Participation (SLAPP) suits. What happens when a company begins to go after individuals who have injured its corporate personhood? While many authors emphasize that only individuals could file suit against one another, I worry that this is just the thin edge of the wedge – corporate interests will flock to expand how the proposed changes can be utilized by their own well-resourced legal departments.

Despite this problem, it is perhaps either one of naivete or a case of my projecting pessimism upon the argument. Of greater concern is a point underscoring many of the contributions of the book, and that is only explicitly made manifest by Leiter when he asks:

What precisely are the contributions to human knowledge and well-being that are attributable solely to [blogs, chatrooms, and Google], that would have been impossible without [the Internet's] existence in its current, unregulated form? It is far from obvious that there are any, at least in otherwise democratic societies. (168)

Leiter is focused on the harms that these things have led to – statements that have seriously impacted people’s lives and livelihoods – but in rhetorically asserting a lack of primary value to any of these key facets of the Internet he demonstrates a lack of awareness of what the Internet is, and has done, for many individuals. Indeed, Leiter and Nussbaum in particular seem to have carefully separated the ‘real’ world from the ‘fictional’ world of the Internet and assigned primacy to the former, and denigrate the value of the latter. Such is unsurprising – neither are so-called ‘digital natives’ – and so see the Internet as a tool or ‘other space’ instead of an element of their very existence. Sherry Turkle’s work, which carefully maps the close linkage between online and offline worlds to recognize that neither is necessarily discrete to the minds of those growing up with the Internet, is a better way to approach and understand the domains of agency associated with the virtual and virtually real. Either domain can be perceived or realized as discrete, but they can also been seen as mutually overlapping and integrated. Indeed, with the expansion of the digital into the analogue life we live in the West, notions of the Internet and Web as somehow ‘fictitious’ or needing to assert their primary and unitary value as opposed to ‘traditional’ analogue modes of communication are increasingly anachronistic. One imagines that similar complaints were made when the yellow press was launched, radio began, television launched, and so forth.

Conclusion

I am not a fan of repealing Section 230, nor am I in favor of establishing an ‘identified Internet’ in an effort to somehow convey ‘respectability’ on the online world (as suggested by Levmore). I worry that many of the essays in the book are so focused on alleviating (very real!) harms that they miss the broader impacts of modifying how the Internet is regulated by the United States. I also am concerned that the aim is to draw regulation of the Internet into the ‘traditional’ justice system (and not significantly update, or address how to update, a system that is dependent on access to counsel) or into a privatized system of judgement (e.g. Google evaluations of whether content is defamatory or tortious).

Despite my own concerns, this book contains incredibly well articulated arguments for further regulation of the Internet and a host of (disgusting and depressing) examples of the specific harms that individuals have, and continue to, face at the hands of online aggressors. I would highly recommend the text to anyone working on the ‘darker’ sides of the Internet from policy, legal, or general studies points of view: this is one of 2011′s ‘must reads’.

Other posts you might be interested in:

Review: Network Nation – Inventing American Telecommunications

Christopher — Tue, 05 Apr 2011 20:44:55 +0000

Image courtesy of Harvard University Press

I spend an exorbitant amount of time reading about the legacies of today’s telecommunications networks. This serves to historically ground my analyses of today’s telecommunications ecosystem; why have certain laws, policies, and politics developed as they have, how do contemporary actions break from (or conform with) past events, and what cycles are detectable in telecommunications discussions. After reading hosts of accounts detailing the telegraph and telephone, I’m certain that John’s Network Nation: Inventing American Telecommunications is the most accessible and thorough discussion of these communications systems that I’ve come across to date.

Eschewing an anachronistic view of the telegraph and telephone – seeing neither through the lens that they are simply precursors to contemporary digital communications systems – John offers a granular account of how both technologies developed in the US. His analysis is decidedly neutral towards the technologies and technical developments themselves, instead attending to the role(s) of political economy in shaping how the telegraph and telephone grew as services, political objects, and zones of popular contention. He has carefully poured through original source documents and so can offer insights into the actual machinations of politicians, investors, municipal aldermen, and communications companies’ CEOs and engineers to weave a comprehensive account of the telegraph and telephone industries. Importantly, John focuses on the importance of civic ideals and governmental institutions in shaping technical innovations; contrary to most popular understandings that see government as ‘catching up’ to technicians post-WW I, the technicians have long locked their horns with those of government.

In addition to gems about the characters and intentions of various players in the telegraph and telephone industries, the book offers scholars of communications technologies a well sourced and detailed accounting of past regulatory fights. These are instructive, showcasing a rhythm in interests between private corporate ownership and public ownership of communications infrastructure, whilst simultaneously outlining techniques that communications CEOs have used to advance their causes even when their infrastructure is (temporarily) deputized for governmental uses. Further, we see how ‘usage based billing’ systems have been suggested with varying effect since electric communications were possible and can identify common resonances in the discussions of the 19th century, early 20th century, and today. For those whose interests in telecommunications stray into the domain of privacy (as in my case) we find that privacy issues have been rife with earlier telecommunications systems; who, today, would identify a “total stranger” calling you as a particularly egregious privacy violation solely on the basis that they were reaching past your home’s outer walls? This was a serious concern in 1895 with the deployment of ringing telephones.

While the book often tracks well-known grounds – issues between the Independents and the Bell Systems – it unearths novel insights on almost every page. We come to understand some of the rancour between major independents and Bell companies through the public notes that John regularly turns to to underscore or emphasize his point that civic ideals and government departments played key roles in shaping the structure of ‘regulated’ competition. His insights emphasize the weaknesses, today, of relying on infrastructure-based competition instead of common access to key communications infrastructure. Further, we see that wireless was upheld as a successor to telephone and telegraph communications in the early 20th century; wireless promised to “free competition” between wire and wireless communications and render existing telephone properties “worthless” in weeks. Given today’s debates around the promises and potential of wireless communications to compete with ‘traditional’ wireline communications, we would be well served to reflect on how effective such competition has been in the past.

So, where are the weaknesses of the book? In part, we might say that its limitation to just the telegraph and telephone weaken the concluding chapter wherein the author offers a whirlwind account of eighty years of regulatory (in)action in the US. Given how detailed an account we get for the first four hundred pages it seems disappointing to not have the same level of empirical clarity at the very end. Further, this is a book emphasizing American telecommunications and offers little attention to the actions elsewhere in the world; there is no real attempt to engage with International Relations scholarship that investigates the British-American relationship(s) around the telegraph and telephone. It’s also a book with a limited (though well defended) thesis that almost feels reactionary. For example, rather than bombastically claiming that the telegraph operated as a ‘Victorian Internet’ (clearly targeting the thesis of Standage’s book of the same name) it is more suitable to argue that some members of the press saw the value in the telegraph for business purposes and that the system was never particularly accessible to the public. If by ‘The Victorian Internet‘ you mean ‘a communications service largely limited to the upper (business) classes and particular members of the press’ and that this ‘Internet’ was intrinsically shaped by the political economy of the day (rather than being an almost self-generating technical marvel that outstripped regulators’ ability to engage with it) then Standage is correct: the telegraph was a precursor to the Internet. This is not, of course, Standage’s thesis. As an academic, I quite like the limited and well-argued framework that John operates from, though recognize that many people would prefer a wider-ranging conclusion (for such an effort, see Wu’s ‘The Master Switch: The Rise and Fall of Information Empires‘).

To whom would I recommend this book? Obviously, scholars in the field will find this book incredibly profitable. Given today’s tumultuous politics of telecommunications in North America the book offers advocates, members of the public, and policy makers a concise history of what went on in the preceding two centuries of telecommunications regulation. For those interested in usage based billing, issues of Internet congestion, the origins of contemporary communications laws and politics, and relationship between civic attitudes and government regulation of communications services, this is a terrific book. For those wanting to go a step further, wanting to know a little more about the politics and technologies of telecommunications in America post-WW II, I’d recommend taking up Nuechterlein’s and Weiser’s ‘Digital Crossroads: American Telecommunications Policy in the Internet Age‘ as an almost natural continuation of John’s own Network Nation.

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Released: Literature Review of Deep Packet Inspection

Christopher — Mon, 04 Apr 2011 16:00:09 +0000

Scholars and civil advocates will be meeting next month in Toronto at the Cyber-surveillance in Everyday Life workshop. Participants will critically interrogate the surveillance infrastructures pervading daily life as well as share experiences, challenges, and strategies meant to to rein in overzealous surveillance processes that damage public and private life. My contribution to the workshop comes in the form of a modest overview of literature examining Deep Packet Inspection. Below is an abstract, as well as a link to a .pdf version on the review.

Abstract

Deep packet inspection is a networking technology that facilitates intense scrutiny of data, in real-time, as key chokepoints on the Internet. Governments, civil rights activists, technologists, lawyers, and private business have all demonstrated interest in the technology, though they often disagree about what constitutes legitimate uses. This literature review takes up the most prominent scholarly analyses of the technology. Given Canada’s arguably leading role in regulating the technology, many of its regulator’s key documents and evidentiary articles are also included. The press has been heatedly interested in the technology, and so round out the literature review alongside civil rights advocates, technology vendors, and counsel analyses.

Downloadable .pdf version of the literature review.

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Review: Surveillance or Security?

Christopher — Wed, 23 Feb 2011 06:56:15 +0000

Courtesy of the MIT Press

In Security or Security? The Real Risks Posed by New Wiretapping Technologies, Susan Landau focuses on the impacts of integrating surveillance systems into communications networks. Her specific thesis is that integrating surveillance capacities into communications networks does not necessarily or inherently make us more secure, but may introduce security vulnerabilities and thus make us less secure. This continues on threads that began to come together in the book she and Whitfield Diffie wrote, titled Privacy on the Line: The Politics of Wiretapping and Encryption, Updated and Expanded Edition.

Landau’s work is simultaneously technical and very easy to quickly read. This is the result of inspired prose and gifted editing. As a result, she doesn’t waver from working through the intricacies of DNSSEC, nor how encryption keys are exchanged or mobile surveillance conducted, and by the time the reader finishes the book they will have a good high-level understanding of how these technologies and systems (amongst many others!) work. On the policy side, she gracefully walks the reader through the encryption wars of the 1990s,[1] as well as the politics of wiretapping more generally in the US. You don’t need to be a nerd to get the tech side of the book, nor do you need to be a policy wonk to understand the politics of American wiretapping.

Given that her policy analyses are based on deep technical understanding of the issues at hand, each of her recommendations carry a considerable amount of weight. As examples, after working through authentication systems and their deficits, she differentiates between three levels of online identification (machine-based, which relies on packets; human, which relies on application authentication; and digital, which depends on biometric identifiers). This differentiation lets her consider the kinds of threats and possibilities each identification-type provides. She rightly notes that the “real complication for attribution is that the type of attribution varies with the type of entity for which we are seeking attribution” (58). As such, totalizing identification systems are almost necessarily bound to fail and will endanger our overall security profiles by expanding the surface that attackers can target.

Landau argues that key US intercept laws, such as CALEA, often add costs that delay the deployment of new products. Further, such laws act as market barriers to smaller competitors because they find it challenging to comply with laws that demand costly infrastructure investments that aren’t needed for day-to-day operations. To comply with CALEA, telecommunications carriers are increasingly purchasing expensive and fungible systems that integrate deep packet inspection technologies. To offset equipment costs, these same carriers are motivated to use their fungible equipment to prioritize and delay traffic. Landau takes a dim view of such repurposing, writing that:

There is no need to do deep packet inspection to determine traffic priority. The simple solution to the traffic congestion problem consists of IPv6, the long-delayed IP protocol, and Internet usage pricing. IPv6 has two fields, one for service … and one for the quality of service designated by the user … Instead of the ISP determining the traffic shaping, the customer can do so, and can pay for the privilege of employing the faster service (132).

Further, inserting surveillance equipment that can massively mediate data and voice communications introduces intentional vulnerabilities into the communications infrastructure. In effect, wiretapping creates risks to communication security and, by endangering the privacy of citizens’ communications, society’s social fabric. Given the widespread introduction of such vulnerabilities throughout American telecommunications networks, two things are required to ensure secure communications:

End-to-end encryption to guarantee message content;
Company practices that disallow divulging conversations and that disallow revealing that communications between parties even happened.

Extending her view of communications security beyond the borders of continental America, Landau argues that providing secure communications systems to NGOs and other ‘on the ground’ parties lets them communicate useful intelligence to the world without fearing retribution from local authorities. The US and UN alike have diminishing sites of presence throughout the world but NGOs continue to burrow into the world’s social fabric. The US is thus well served in pumping research dollars into projects such as Tor; only by doing so can America hope to have a informed perception of the world.

After arguing that DPI (and, by extension, technologies replicating DPI functionality) is effectively a totalizing surveillance apparatus, Landau writes:

The real issue about ubiquitous DPI would be a necessary reliance on anonymization tools such as Tor to hide transactional information. Anyone not using these privacy-preserving, security-protecting tools in the face of omnipresent DPI usage by communications providers would be endangering themselves, their companies, and anyone with whom they communicated. Looking purely from the vantage point of security, it is difficult to understand law enforcement’s push for the ubiquitous use of DPI. This is a short-term solution to enable wiretapping with severe long-term negative consequences for communications security (222).

Such long-term consequences arise because infrastructure can be exceedingly challenging to retrofit; once hardware is deployed in the field, networks configured, and policies set in place, modifying them can be devilishly difficult.[2] The potential consequence is that all ICT systems reliant on the Internet to communicate could be vulnerable to security exploits. Were such an exploit ever taken advantage of the public would reduce its trust in its communications systems. With a loss of trust, and subsequent loss of speech, the democratic spirit suffers.

So, what are the solutions? Landau recognizes that the network of yesterday is poorly suited for the needs of today and tomorrow. Rather than trying to retrofit security, authentication, and identification across the entire Internet, a more granular and modest approach is preferred. The widespread adoption and deployment of Software Defined Networks (SDNs) would enable a multifaceted security profile at the switch/node, providing authentication and identification for some, but not all, transactions and transmissions. Worrying that present and future security policies at nodes are subject to economic facts – vendors often receive a greater market share by getting to market first rather than by providing a secure product – Landau argues that all security-driven vendors should be somehow accountable for exploits of their systems. This would place economic risk on vendors, encouraging delays to market in order to resolve security deficits and avoid future economic losses.

The book concludes with a series of principles that are needed to ‘get communications security right. They are:

Wiretapping laws and technologies must be measured against the threats they pose to communications security. These laws and technologies should not be implemented if they would substantively threaten the “freedom, security, human dignity, or the consent of the governed” (251).
To preserve freedom for posterity, the following must be adopted:
1. Interception technologies must be designed such that auditing functions are automatically on;
2. The design of interception access should minimize flexibility to reduce risks that the system can be subverted;
3. The system should be designated to have genuine two-factor control;
4. The design should be subject to open public review before implementation in any public network.
Any suspension of communications’ privacy protections must only occur for extremely short durations (think measurable in hours or days, not weeks, months, or years) and only during periods of extreme danger. Audits and evaluations of the suspension(s) must follow.
Communications surveillance must not impede the working of the press, on the belief that a “nation is a democracy only so long as journalists’ communications are secure” (252).

On the whole, the book is excellent. Landau possesses a deep technical and policy understanding of American wiretapping, and brings both of these to bear in her evaluations and policy recommendations. Further, she is gifted in her ability to explain to the layperson and expert alike how policy and security intersect, with hosts of examples throughout the book to supplement her overall argument that intentional security deficits for wiretapping purposes are dangerous to communications security and communicative privacy. When Landau moves away from security, however, the text is on weaker footing. While the forth estate is an important element of a democracy, one can’t help but think of Herman and Chomsky’s Manufacturing Consent: The Political Economy of Mass Media (and the Propaganda Model more specifically) and feel that her trust and reliance on the American press is somewhat overstated. There are some sections that also seem particularly patriotic – private communications caused Americans to adopt the telegraph more rapidly than their surveilled European counterparts, as one example – which could have been more critical of both American and European communications history alike.

I should point out two caveats that might bother some readers. First, the book focuses on the reality of American surveillance. Landau’s justifications are that the wiretapping and surveillance are complex issues and need nuance, that US choices affect the rest of the world, and that communications intelligence and interference affects economics. A good place to start looking at the economic impacts are on the national, rather than international, level. Second, Landau argues that the line to draw is not between surveillance and civil liberties but between surveillance and security. If either of these conditions are particularly unpalatable, then the book may not be for you.

On the whole, I would highly recommend Susan’s book. It’s extremely well referenced, technically savvy, politically aware, and forward thinking. If you’re interested in the politics of security, what governments and technologists are up to in the field of communications security and communications infrastructure, or the implications of present communications infrastructures for the future of democracy, then you need to buy and read this book.

Footnotes:

[1] For an excellent overview of the encryption wars, see “The Encryption Wars: An interview with Jay Worthington” (link to .pdf).

[2] Her argument here closely follows that of Langdon Winner’s in The Whale and the Reactor

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Review of Telecommunications Policy in Transition

Christopher — Thu, 06 Jan 2011 18:00:57 +0000

Image courtesy of the MIT Press

This first: the edited collection is a decade old. Given the rate that communications technologies and information policies change, this means that several of the articles are…outmoded. Don’t turn here for the latest, greatest, and most powerful analyses of contemporary communications policy. A book published in 2001 is good for anchoring subsequent reading into telecom policy, but less helpful for guiding present day policy analyses.

Having said that: there are some genuine gems in this book, including one of the most forward thinking essays around network neutrality of the past decade by Blumenthal and Clark. Before getting to their piece, I want to touch on O’Donnell’s contribution, “Broadband Architectures, ISP Business Plans, and Open Access”. He reviews architectures and ISP service portfolios to demonstrate that open access is both technically and economically feasible, though acknowledges that implementation is not a trivial task. In the chapter he argues that the FCC should encourage deployment of open access ready networks to reduce the costs of future implementation; I think it’s pretty safe to say that that ship sailed by and open connection is (largely) a dead issue in the US today. That said, he has an excellent overview of the differences between ADSL and Cable networks, and identifies the pain points of interconnection in each architecture.

Generally, O’Donnell sees interconnection as less of a hardware problem and more of a network management issue. In discussing the need and value of open access, O’Donnell does a good job at noting the dangers of throttling (at a time well ahead of ISP’s contemporary throttling regimes), writing

differential caching and routing need not be blatant to be effective in steering customers to preferred content. The subtle manipulation of the technical performance of the network can condition users unconsciously to avoid certain “slower” web sites. A few extra milliseconds’ delay strategically inserted here and there, for example, can effectively shepard users from one web site to another (p53).

Arguably not only websites are affected by such ‘steering’ efforts, but protocols and application-types as well; his position on steering users is well reflected in contemporary network neutrality and Internet Governance texts, such as van Schewick’s Internet Architecture and Innovation. In the face of such discriminatory actions by ISPs, what is the solution? For O’Donnell, the solution is to have an objective monitoring regime that both monitors content discrimination and alerts customers of subpar network performance. In today’s landscape we can find these suggestions put into practice (e.g. tools available through M-Lab and the FCC’s recent call for applications to ID net neutrality violations), though it is questionable how widespread and effective they really are/will be.

If you need a justification to buy this book (and, given that it’s a decade old policy book, you likely do) it’s found in Blumenthal and Clark’s “Rethinking the Design of the Internet: The End-to-End Arguments Vs. The Brave New World.” The authors carefully examine how the End-to-End principle is violated by ISPs at the time of the chapter’s writing and the potential implications of such violations. This chapter reads like a well rationalized argument for legally guaranteed network neutrality. The authors worry that ISPs will weaken their commitments to invest in infrastructure for general Internet once they deploy their own content delivery networks. This is, obviously, a key issue in today’s discussions of vertical integration, throttling of over-the-top content streams, and provisioning bandwidth to access third-party content.

When third parties actively inspect content in transit the E2E argument is logically invalid – E2E precludes such interference by the network core. As a result, faced with this situation, the authors suggest that having a debate about the situation requires that either E2E be abandoned, that the third party involvement be rejected in its entirety because it undermines E2E, or that a next generation principle be developed that retains as much of E2E as possible. We regularly see different bodies continuing to weigh this triumvirate of choices today, and Zittrain’s ‘generativity principle’ (a rule that asks that any modifications to the Internet’s design or to the behaviour of ISPs be made when they will do the least harm to generative possibilities, discussed in The Future of the Internet–And How to Stop It) clearly fits within the third option given by Blumenthal and Clark. Rather than turning to derivative versions of this tripartite division, come to this essay instead.

Further, the authors worry that whereas in the 80s and early 90s the core of the network interfered with applications for their benefit, this is less the case today. As a result, injecting middleware ‘intelligence’ is potentially problematic, and even hostile, to users’ data traffic. While much of the chapter reads like a love letter to network neutrality advocates, it comes with some words of caution. First: there is a warning that the law is just not prepared to ‘catch up’ to the technical speed of the ‘net. As a result, legal/regulatory responses will be delayed and code will race ahead. To ‘catch up’ the legal system itself needs to be reformatted in some sense. It’s unclear whether this modification to the legal system has happened, and perhaps even less clear whether the courts and regulators can competently keep pace with telecom developments. Code, it seems, still races ahead of law though it is admittedly ‘pulled back’ by regulatory structures and legal judgements from time to time. The threat of regulation and legal action may actually be more powerful than actual deployments of regulatory capacity and legal might. Second: while E2E empowers connectivity, it should also impose a responsibility. Where the unrestrained actions of ends cause harm to the network and/or its users, the individual(s) responsible for those ends ought to be held accountable. This is a contentious point, one that resonates with tech heads and less with consumers who treat the ‘net as another consumer good.

The final essay that I would highly recommend of the collection (though most are truly excellent) is Greenstein’s “Copyright in the Age of Distributed Applications.” Greenstein recognizes that many of the vicarious copyright infringement findings in the US are based on case law where absentee landlords had a physical capacity to oversee the infringing action(s). Such is not always the case with distributed (P2P) applications. Where the capacity to supervise is infeasible or ineffective in stifling infringing acts it seems unreasonable to apply old case law. A new framework is required, one that would emerge if the following questions guided vicarious infringement judgements:

What is the nature of each potential non-infringing use?
What is the likelihood that any consumer would acquire and use the product for such non-infringing uses?
What is the role of the technology in facilitating the infringing uses?
What is the role of the technology in facilitating non-infringing-uses?
What is the likelihood that, if the technology is or is not deemed to be infringing, non-infringing uses will proliferate.

One can imagine that, were this set of criteria adopted, case law around P2P in the United States and WIPO signatory nations might be very different…

In addition to these three papers, Rob Frieden’s discussion of peering relationships is truly excellent, and the early discussion of wireline vs wireless deployment in the US and Japan by Moto Murase gives a good (and early) comparison of those nations’ policies. With her work you can nicely anchor a temporal comparison of both nations’ deployment strategies and their respective effects. Both papers are excellent and valuable to the contemporary telecom policy scholar, policy wonk, or layperson interested in telecom policy.

It might be hard to justify the cost of a decade-old communications policy text, but this collection has aged quite well. If network neutrality, peering, copyright, or comparative deployment policies are in your line of interest then this is a wonderful book to add to your collection!

B. M. Compaine and S. Greenstein (eds.). (2001). Telecommunications Policy in Transition: The Internet and Beyond. Cambridge, Mass.: The MIT Press.

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Review of Wired Shut: Copyright and the Shape of Digital Culture

Christopher — Mon, 03 Jan 2011 18:00:40 +0000

Image courtesy of the MIT Press

Gillespie argues that we must examine the technical, social-cultural, legal and market approaches to copyright in order to understand the ethical, cultural, and political implications of how copyrights are secured in the digital era. Contemporary measures predominantly rely on encryption to survey and regulate content, which has the effect of intervening before infringement can even occur. This new approach is juxtaposed from how copyright regulation operated previously: individuals were prosecuted after having committing copyright infringement. The shift to pre-regulation treats all users as criminals, makes copyright less open to fair use, renders opposition to copyright law through civil disobedience as challenging, and undermines the sense of moral autonomy required for citizens to recognize copyright law’s legitimacy. In essence, the assertion of control over content, facilitated by digital surveillance and encryption schemes, has profound impacts on what it means to be, and act as, a citizen in the digital era.

This text does an excellent job at working through how laws such as the Digital Millennium Copyright Act (DMCA), accompanied by designs of technologies and the political efforts of lobbyists, have established a kind of ‘paracopyright’ regime. This regime limits uses that were once socially and technically permissible, and thus is seen as undermining long-held (analogue-based) notions of what constitutes acceptable sharing of content and media. In establishing closed trusted systems that are regulated by law and received approval from political actors content industries are forging digitality to be receptive to principles of mass-produced culture. This continued imposition of consumer-based engagement with cultural products challenges hopes that the digital might offer a way of reinvigorating democratic discourse. In effect, content industries are continuing to undermine democratic notions of what individuals should be able to do with their cultural artifacts and technological systems.

Gillespie’s work can be seen as a nuanced examination of how encryption technologies embedded in digital rights management systems curtail speech, action, and moral autonomy in contemporary democracies. Such limitations are only possible because of the adoption of digital technologies and the integration of surveillant sub-systems to limit the uses of content, often to the detriment of individuals. He has written a book that speaks to the contemporary struggle around digitized content: should content be more ‘accurately’ restricted in the digital era, where all uses are monitored and monetized, or must we instead fight to retain the socially-acceptable norms of non-commercial content sharing and dissemination from the pre-digital era? He powerfully argues for the latter, and warns us of the dangers of the former.

T. Gillespie. (2007). Wired Shut: Copyright and the Shape of Digital Culture. Cambridge, Mass.: The MIT Press.

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Review: Internet Architecture and Innovation

Christopher — Wed, 01 Dec 2010 19:15:47 +0000

I want to very highly recommend Barbara van Schewick’s Internet Architecture and Innovation. Various authors, advocates, scholars, and businesses have spoken about the economic impacts of the Internet, but to date there hasn’t been a detailed economic accounting of what may happen if/when ISPs monitor and control the flow of data across their networks. van Schewick has filled this gap by examining “how changes in the Internet’s architecture (that is, its underlying technical structure) affect the economic environment for innovation” and evaluating “the impact of these changes from the perspective of public policy” (van Schewick 2010: 2).

Her book traces the economic consequences associated with changing the Internet’s structure from one enabling any innovator to design an application or share content online to a structure where ISPs must first authorize access to content and design key applications in house (e.g. P2P, email, etc). Barbara draws heavily from Internet history literatures and economic theory to buttress her position that a closed or highly controlled Internet not only constitutes a massive change in the original architecture of the ‘net, but that this change would be damaging to society’s economic, cultural, and political interests. She argues that an increasingly controlled Internet is the future that many ISPs prefer, and supports this conclusion with economic theory and the historical actions of American telecommunications corporations.

van Schewick begins by outlining two notions of the end-to-end principle undergirding the ‘net, a narrow and broad conception, and argues (successfully, in my mind) that ISPs and their interrogators often rely on different end-to-end understandings in making their respective arguments to the public, regulators, and each other. Briefly, the narrow version of the end-to-end argument (derived from Saltzer, Reed, and Clark’s 1981 paper) states that:

A function should be implemented in a lower layer [of the network stack], if it can be completely and correctly implemented at that layer. Sometimes an incomplete implementation of the function at the lower layer may be useful as a performance enhancement (van Schewick 2010: 58).

The broad version of this argument, derived from subsequent writings of Reed et al., asserts that:

A function or service should be carried out within a network layer only if it is needed by all clients of that layer, and it can be completely implemented in that layer (van Schewick 2010: 58).

The broad version of the end-to-end argument is stronger and often referred to by policy texts and descriptions of the ‘net’s architecture whereas the first argument is preferred by engineers and technical discussants. The usage of differing notions of end-to-end have led defenders of the differing shades of the end-to-end principle to speak past one another. Further, divergent understandings of the end-to-end architectural discussion has created, and continues to create, rifts between engineers, between those who were (and remain) central to the development of the ‘net more generally, and between those publishing technically informed economic writings about the Internet. This is not a small issue; the conceptual possibilities latent in either definition ‘authorize’ stronger or weaker approaches to mediating applications and content at differing levels of the network stack itself.

After differentiating between the narrow and broad approaches to end-to-end, van Schewick identifies the impacts of different Internet architectures on the costs of innovation, the resulting organizational makeup of innovating parties, and the effects architecture has on the competition of complementary goods (e.g. VoIP, filesharing, email, etc as opposed to the actual hardware composing the Internet). After laying this groundwork, van Schewick works through how deviations from the ‘broad’ end-to-end argument affect innovation and the consequences of centralized versus decentralized application development and content distribution. The book concludes with an analysis of the public versus private interests in network architectures, with the author asserting that citizens and their public representatives must understand the impacts of architecture on the Internet’s future. ISPs are attempting to better control and monetize their networks, and these attempts may undermine the possibilities of innovation while sacrificing the long-term evolution of the ‘net so that companies can realize short-term profits. Such sacrifices must be critically interrogated by a public that is increasingly relying on digital communications in all facets of life and business.

This is a heavy read, a read made heavier if you haven’t spent some time reading economic theory, elements of the network neutrality debates of the past decade, and a little on the evolution of American telecommunications in the past two decades. This said, the author generally does a terrific job in walking the reader through every facet of her argument, using examples and sidenotes to expand and clarify more troublesome sections of the book (especially as it relates to economic theory and approaches to innovation). I highly recommend this book – it’s worth every penny that it will cost you. It also includes an extensive set of citations and reference list (about 160 pages worth) that will be helpful for any subsequent research or reading beyond the text itself.

If I have a criticism of the book it’s that it tends to be very American-centric. While the principles contained in the book remain general enough that readers can lay the theoretical model she traces upon the telecommunications landscape of non-US states, this is a bit of work that non-American readers will have to do when examining their own telecommunications landscape through her lens. This may somewhat limit the book’s immediate guidance to policy makers, policy analysts, economists, Internet governance scholars, and concerned/interested citizens more generally, but not so much that any of these readers should stay away.

I have a suspicion that this book will become one of the centrepieces for Internet governance literatures in coming years, and likely to be as influential Benkler’s The Wealth of Networks: How Social Production Transforms Markets and Freedom with regards to the economics of the Internet. If issues around Internet governance, innovation, and control are your cup of tea then consider this book an absolute must buy.

B. van Schewick. (2010). Internet Architecture and Innovation. Cambridge, Mass.: The MIT Press.

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