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Post by: Dave Herrera | January 22nd, 2010
Jeff Jarvis recently argued in The Guardian that “linking is a right.” (By linking, I assume he’s referring to hyperlinking). The articled fascinated me for several reasons, but it also excited me because I hope to consider issues just like those he raises as I begin my communications law seminar at the University of Missouri this week.
Below are some initial thoughts and questions about his piece, which I hope to revisit during the semester. In the meantime, I would appreciate any comments or suggestions for where I could research more on the topic.
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As commenters on his Guardian piece asked, from whence emanate thine right? Rights, at least in the sense most useful for this discussion, tend to come from an official body of some sort. Does the right come from Tim Berners-Lee? ICANN? Pixie dust?
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Jarvis writes, “The internet is not a medium … it is a place. Think of it as a public park.” Even were it a place and not a medium, there are many kinds of places, which have many kinds of ties to government or regulation.
Were government to rezone a public park into an industrial zone, the place would cease to be a public park. Similarly, government could allow a small business to sell its goods on the property (think, e.g., food stands at a festival. The business’s location in the public park doesn’t permit someone to swipe its goods.
The above examples are to show that even a “public” place is subject to the restrictions of official bodies, whether those restrictions are viselike or baggy. Shouldn’t linking, then, be subject to the same potential restrictions? If so, linking is not a right instantly bestowed upon anyone with a Web browser.
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As if to anticipate this, Jarvis writes that he is not
“arguing that being in public gives anyone the right to copy and steal content. We both agree that copyright and intellectual property must be respected.
But linking is not stealing. Indeed, in the link economy I’ve written about here, linking is distribution; it is a benefit.
“Linking is not stealing” is the point in question, so this seems to just restate his conclusion.
As for linking being a benefit: Suppose I own a bomb, but, thanks to poor upkeep on my part, it’s going to explode in my face in a few weeks. You had a hunch this might happen, so one night you sneak it out of my basement whilst I slumber.
Hey, you saved my life! Thanks! But didn’t you still steal my bomb?
Post by: Dave Herrera | January 16th, 2010
Robert A. Arcamona, who writes the blog Protecting the Source, recently reported on a lawsuit filed against Wikipedia by a German man. The man is completing a 15-year sentence for murder, and he claims that discussion of his conviction on Wikipedia “severely [impacts]” his “rehabilitation and his future life outside the prison system.” The suit requests that Wikipedia suppress the convict’s name, according to The Register.
In closing his post, Arcamona writes:
I find it unlikely that an Internet company like Wikipedia could find it economically sustainable to limit what is said on Web pages accessible in Germany according to one set of laws, while permitting other sorts of information on Web pages accessible in another countries according to different legal standards. The net effect of this could be to bring Internet speech on trans-national Web sites, like Wikipedia, down to the least acceptable common denominator.
Let me stress at the outset that I have no evidence to suggest Arcamona’s hypothesis will turn out to be correct. Regardless, I find it an interesting thought experiment to imagine what would happen were it to come true; specifically, the reaction from American journalists who would have to abide by the speech rules of other countries.
Journalists are not immune to the tendencies described by Mary Ann Glendon in Rights Talk: The Impoverishment of Political Discourse. Glendon argues that Americans are unique in the degree to which they describe their rights in atomistic terms, with little reference to responsibility to one’s communities or the competing views of others.
For example, in a 2006 article in Editor and Publisher (since placed behind a paywall), Joe Strupp, the magazine’s editor, criticized a local politician’s proposal to ban reporters from entering the property of newly-grieving family members. The proposal’s rational was that the family members deserve privacy during a difficult time. They could still approach reporters themselves–and Strupp noted that some families indeed do want to talk to the media–but reporters wouldn’t be able to make the first move.
Strupp argued that the law was an unfair restriction on the rights of reporters. Most journalists were nice people, Strupp wrote, and the stories resulting from meetings with family members were good yarns. Note Strupp’s lack of reference to those whom the law was to aid?
American journalists take their First Amendment rights seriously. But, their conviction often increases their hostility towards speech laws found in other countries.
I use Strupp’s argument to demonstrate how strong the response would probably be to any change in the direction Arcamona hypothesizes. However, American journalists would also face more serious consequences than the ones at issue in the above example.
One example is libel law. As Alan Rusbridger, editor of the UK’s Guardian newspaper, described in The New York Review of Books, British libel law is tougher on media outlets than is American law. Rusbridger’s article describes the costs facing the Guardian during a serious libel lawsuit–costs that only a few major media companies can afford, let alone small, new-media outlets (on this point, also see the discussion at Harvard’s Nieman Lab of single-serving libel protection for smaller publications*). Were American journalists to suddenly confront libel law less protective of themselves than they enjoy now, we probably would witness a “chilling” effect on speech, justifiably or not.
So, is there a future in what Arcamona calls an “international First Amendment”? If so, should we expect such laws to trend toward American interpretations, or those of other countries? What would be the expected consequences of such laws?
* Disclaimer: I have written an as-yet unpublished article for the Nieman Lab as a freelancer.
Post by: Mandy Bunner | December 28th, 2009
 Image Courtesy of Gadgetphix For years, lawyers have been glued to their Blackberries. Every piece of important information contained on one hand-held device was a huge step forward in an attorney’s ease of communication with the firm and clients. I personally know several attorneys who would not know how to function if they were separated from their Blackberries for more than a few seconds.
When the iPhone was released, the Blackberry suddenly had competition. Given the general popularity of the iPhone, the prediction was that the Blackberry would eventually be discarded by lawyers. However, the prediction has yet to be realized. Lawyers tend to grab a hold of a way of doing things and refuse to change (hence, if you have ever read a resolution you have seen archaic language such as “Be it resolved that on the 22nd day of December in the year 2009, Party A and Party B hereby agree that. . .” instead of less formal “Party A and Party agree that . . .”). Therefore, attorneys who have been using the Blackberry for several years have been hesitant to change. Moreover, those who did decide to make the transition to AT&T and Apple’s iPhone have found themselves regretting the decision.
In this week’s edition of the ABA Journal Tech Report there was an interesting article about iPhone and security concerns. It seems that the iPhone takes screenshots of its pages and stores the information. Perhaps the worst news for the iPhone is that the security risk is created by a purely aesthetic feature (the shrinking of windows when they are closed by pushing the home button). Beyond aesthetics, the feature is useless. Although such stored information can be useful in solving criminal cases, it presents confidentiality issues for attorneys. Just imagine the ethical implications created when there is a copy of confidential documents floating around beyond the control of the attorney . . .
Yet another security risk exists because the content stored on the iPhone itself is not difficult to access. Even if the iPhone is password protected, the contents can be accessed in under a minute by jailbreaking the iPhone. I wonder whether there were ever similar issues with the Blackberry? Is the Blackberry really that much safer?
It seems that lawyers will remain inseparable from their Blackberries for awhile longer.
Post by: Chris Stafford | December 19th, 2009
I don’t know if anybody else has noticed, but Spam filters have gotten a *lot* better since the 90’s. This is due to a dramatic leap forward in how our filters are designed. The technical design behind this improvement is fascinating, especially to a programmer, but rather than go into the real nitty-gritty, I’m going to give a real brief over-view, and then discuss some of the implications.
The fifty-thousand foot view of the new spam filters is this: They’ve gotten so much better because they’re no longer maintained by humans. Instead, a spam filter is initially given a training set of, say, 50,000 emails. These emails are flagged as ’spam’ or ‘not spam’. The filter then chews through those emails, and stores every single individual word. As the messages are digested, every word present is ‘weighted’, which represents how useful that word is in determining whether a word is spam or not. By the end of the training, the filter can achieve an accuracy rating of 99.99%; on average, only one message in ten thousand will be flagged incorrectly. Then, every time you manually flag a message as ‘Spam’ or ‘Not Spam’, the message is processed and added to the global filters.
The existence of this filtering technology has basically eradicated spam on all services utilizing it, and it has done so without accidently deleting millions of genuinely useful emails at the same time. The filters constantly are constantly learning, which means spammers have a permanent uphill battle to get spam email through.
This filtering technology is wonderful; I love the fact that my gmail account almost never receives spam messages anymore, and I don’t have to constantly check my spam box to check for misrouted emails.
The legal implications are fairly staggering if this technology is expanded to other fields, however. Since email servers are already scanning every message coming in for spam, changing the filters to look for terrorist emails is a natural extension. I would be extremely surprised if the government is not already planning this type of software; it’s simply too effective to pass on for long, and with the Patriot Act, I imagine any legal hurdles would be minor at best.
What is a reasonable expectation of privacy in regards to email? Emails handled through a corporate server are usually considered public to the company; you can be fired for slandering someone, or for sending pornographic material. But should we really consider private emails to be government accessible? After all, the USPS can’t read our mail.
Post by: Curtis Bunner | December 19th, 2009
 Predator Drone - Image Courtesy of Ars Technica Dave already broke this story (is that the right phrase?) on this blog in an update to his post, but I think the topic has enough fissile discussion material to warrant a post of its own. I’d like to steal the intro to this story from Ars Technica, which is where I first read about this:
What three-letter Internet acronym best fits the bizarre news out of Iraq and Afghanistan that militants there have been intercepting US Predator drone video feeds using laptops and a $30 piece of Russian software: LOL, WTF, or OMG?
Actually, all three are appropriate for something this farcical, horrible, and brain-numbing. The reason that the transmissions could be picked up easily by a cheap satellite recording program? They were broadcast in the clear between the drone and ground control. That’s right—no encryption was used.
If that doesn’t give you pause, you might need to check your pulse. It’s an embarrassing example of how cybersecurity is such an under-developed part of the nation’s security. We can build and deploy flying, remotely-operated killing machines à la Terminator, but we can’t encrypt the video feed?
 Hunter Killer Terminator - Image Courtesy of TurboSquid But the threat doesn’t come from Skynet. It comes from our inability and our unwillingness to take seriously the problems and shortcomings of cybersecurity. And with more and more reliance on internet connectivity for operations, and a shift from proprietary military hardware to standard off-the-shelf equipment, the risk of being compromised by hackers is rapidly increasing.
Perhaps now more than ever, we have a unique situation where the weapons of war are becoming easier and easier to hijack from afar. To steal a nuclear warhead, one must first get past the soldiers trained to protect those valuable assets. Steel, concrete, defensive weapons, and armed soldiers stand in the way of stealing such a powerful weapon. But as the picture in Dave’s post asks, does a cyber attack need anything more than a computer with an internet connection? Will World War 3 be launched from a Starbucks coffee shop?
The Legal Implications
When I read about the Predator Drone incident, I wondered what the implications would be for how we treat issue of electronically hijacking weapons to use on others. Say those Iraqi and Afghan militants found a way to control those drones and use them against civilians. Who would be culpable for the deaths of those civilians? Would the U.S. Military be guilty of negligence in allowing that military hardware to fall into enemy hands so easily? I mean, it’s one thing to break into a heavily-guarded nuclear silo and steal a nuke (which hasn’t happened yet to anyone’s knowledge). There are plenty of measures in place to prevent the theft use of a nuclear weapon by a foreign agent. But the defenses against a cyber attack? In this case, almost non-existent. Would the military be guilty of negligence for willingly allowing such weapons to continue to function without stringent security measures?
I ask because this may not only apply to physical military hardware, but also electronic weapons. Let’s try a hypothetical: if a Pentagon defensive computer network is re-purposed to take down, say, the FAA’s flight-planning processing system (which can catastrophically fail on its own when even one router in the nationwide network malfunctions), who’s held liable? Is it the foreign (or even domestic?) hackers who took control of the network? Or is it the Pentagon that failed to secure it’s own network? Or is it the FAA whose flight-planning network was vulnerable to even the slightest disturbances?
I know one thing for sure: the first time the U.S. gets hit by a major cyber attack is going to be a wake-up call for us all . . .
Post by: Dave Herrera | December 16th, 2009
 Is this all it would take to start a war? After a violent incident occurs, one of the first questions usually asked is, “who did this to us?”, followed by, “how do we respond?” We have thousands of years’ worth of debate on those questions, and in some cases we even have laws governing our answers to them. But, how much of this experience and law applies to (what’s usually referred to as) cyberwar?
As Wesley Clark and Peter Levin recently argued in Foreign Affairs, cyberwar is not a distant threat. The US first used a logic bomb against the Soviet Union in 1982. Government and corporate computers face thousands of attacks daily. Defense Secretary Gates has said the military is “desperately short” of people with the skills to fight off attacks. The New York Times reported last week that, recognizing the threats, the US and Russia are discussing potential treaties on cybersecurity and cyberwarfare.
Yet, as Clark and Levin note, we usually can’t answer the “who?” question about a cyberattack. An attacker who sends code through countries with which the US has poor cooperation laws is almost untraceable. Perhaps more crucially, there is no tradition to guide thinking about the “what now?” question. There aren’t laws of war for the Web — as of this writing, not even the Wikipedia entry for “laws of war” includes the words “computer” or “cyber.”
Determining the laws of cyberwar, or treaties regarding cyberwar, raises several questions we could discuss. These are some that come to my uninformed mind, but I imagine others with more knowledge in this area could ask better ones.
- May the victim of a cyberattack respond with physical attacks? How do we determine what compromises a proportional physical response to a cyber aggressor? For example, if I use a logic bomb to disable your power plant (killing no one) may you firebomb my power plant (killing ten)?
- Given that data move across the Web in fractions of seconds, should we institute laws requiring commanders to “cool off” in some way before ordering a cyberattack? Because essentially no time passes between commencing some forms of cyberattack and their delivery, certainty of the initial aggressor’s identity is paramount in avoiding attacks on the wrong group. But, as said, certainty is difficult to come by in cyberattacks. This question seems to have particular importance for the US, which has politicians who win elections based on proudly not second-guessing their decisions.
- We could also challenge the need for laws of cyberwar to begin with. What actions that could take place in cyberwar require laws developed around them? Online, there are no sick or wounded soldiers, nor prisoners of war. Yet these are the situations for which traditional laws of war were designed.
UPDATE | DEC 17: While not quite related to the laws of war, the Wall Street Journal’s report today that militants in Iraq have hacked into video feeds from US pilotless predator drones underscores the vast amount of work to be done in any effort to prepare ourselves for war in the 21st century.
Post by: Phil Jones | December 11th, 2009
So, many are aware that tech savy law enforcement officers are using web 2.0 resources to catch criminals silly enough to post images or evidence of thier crimes online. However, I recently learned that this is working in reverse as well. Defense lawyers have started searching out Facebook and Myspace pages for law enforcement officers involved in cases and using information from those pages to impeach the officers on the witness stand. I can’t post the memo I got this from, as it came from work, but I can tell you that there are several cases of this and Law Enforcement officers are being warned about this type of activity. Interesting isn’t it??
Post by: Curtis Bunner | November 15th, 2009
The current theme for Digi-Docket leaves much to be desired. It’s rather uninteresting and plain, but it was a decent alternative to the default “Classic” theme that appears on every new Wordpress blog. I’d like to ask for some help and suggestions for a new theme for the site. If you have ideas, leave a comment below with your suggestions, and after choosing a few final candidates, I’ll put it up for a vote. If you want a place to start looking for themes, here you go:
http://wordpress.org/extend/themes/
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